Registration No. 33-
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
REPUBLIC NEW YORK CORPORATION
(Exact name of registrant as specified in its charter)
Maryland 13-2764867
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
452 Fifth Avenue, New York, New York 10018
(Address of Principal Executive Offices) (Zip Code)
PROFIT SHARING AND SAVINGS PLAN
OF REPUBLIC NATIONAL BANK OF NEW YORK
(Full title of the plan)
William F. Rosenblum, Jr., Esq.
Senior Vice President, Deputy General Counsel and Secretary
Republic New York Corporation
452 Fifth Avenue
New York, New York 10018
(212) 525-6100
(Name, address and telephone number of agent for service)
<TABLE>
<CAPTION>
Calculation of Registration Fee
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Proposed
Proposed maximum
Title of Securities Amount to be maximum offering aggregate offering Amount of
to be registered registered price per unit(1)<FN> price (1)<FN> registration fee
- --------------------------------------------------------------------------------------------------------
Common Stock, 500,000 shs. $45.1875 $22,593,750 $7,791.00
$5.00 par value
"Interests" in the
Plan(2) N/A N/A N/A N/A
- --------------------------------------------------------------------------------------------------------
<FN>
<FN1>
(1) Estimated solely for the purpose of calculating the registration fee in accordance with Rule
457(c) under the Securities Act of 1933, as amended (hereinafter, the "Securities Act") and
based on the average of the high and low sale prices of the Common Stock of the Registrant
on The New York Stock Exchange Composite Tape on January 12, 1995.
<FN2>
(2) Pursuant to Rule 416(c) under the Securities Act, this Registration Statement also covers
an indeterminate amount of interests to be offered or sold pursuant to the employee benefit
plan(s) described herein.
</TABLE>
The Registration Statement on Form S-8 of Republic New York
Corporation (the "Corporation"), No. 33-44048, filed with the
Securities and Exchange Commission (the "Commission") on November
19, 1991, is hereby incorporated by reference into this
Registration Statement.
PART 1
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.* [FN]
Item 2. Registrant Information and Employee Plan Annual Report.* [FN]
___________________
[FN]
* Information required by Part I to be included in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance
with Rule 428 under the Securities Act and the "Note" to Part I of
Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents heretofore filed by the Corporation
with the Commission are incorporated herein by reference:
- --- Annual Report on Form 10-K for the year ended December 31,
1993, filed with the Commission pursuant to Section 13 of
the Securities Exchange Act of 1934 (the "Exchange Act");
- --- Quarterly Reports on Form 10-Q, filed with the Commission
pursuant to Section 13 of the Exchange Act on May 13, 1994,
August 12, 1994 and November 14, 1994;
- --- Current Reports on Form 8-K, filed with the Commission
pursuant to Section 13 of the Exchange Act on May 9, 1994,
and May 23, 1994; and
- --- The description of the Corporation's Common Stock, $5.00
par value, contained in its Registration Statement on Form
8-B, dated June 6, 1974, filed with the Commission pursuant
to Section 12 of the Exchange Act.
The following document heretofore filed by the Profit Sharing
and Savings Plan of Republic National Bank of New York (the "Plan")
with the Commission is also incorporated herein by reference:
- --- Annual Report on Form 11-K for the year ended December 31,
1993, filed with the Commission pursuant to Section 15(d)
of the Exchange Act.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post
effective amendment which indicates that all the securities offered have
been sold or which deregisters all securities then remaining unsold, are
incorporated by reference in this Registration Statement and are a part
hereof from the date of filing such documents. Any statement contained
in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to
be incorporated by reference herein modifies or supersedes such statements.
Any such statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration
Statement.
Item 8. Exhibits.
4 Profit Sharing and Savings Plan of
Republic National Bank of New York, as amended
23 Consent of KPMG Peat Marwick
In lieu of filing an opinion of counsel concerning compliance
with the requirements of ERISA or an Internal Revenue Service
("IRS") determination letter that the Plan is qualified under
Section 401 of the Internal Revenue Code, the undersigned
Registrant hereby undertakes to submit the Plan and any amendment
thereto to the IRS in a timely manner and will make all changes
required by the IRS in order to qualify the Plan.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and
has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of New York, State of New York, on January 19, 1995.
REPUBLIC NEW YORK CORPORATION
WALTER H. WEINER
---------------------
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in
the capacities and on the date indicated.
Signature Title Date
--------- ----- ----
WALTER H. WEINER Director and Chairman
of the Board January 19, 1995
(Principal Executive
Officer)
JOHN D. KABERLE, JR. Executive Vice President January 19, 1995
and Comptroller
(Principal Financial and
Accounting Officer)
KURT ANDERSEN Director January 19, 1995
ALBERT S. CORWEN Director January 19, 1995
CYRIL S. DWEK Director January 19, 1995
ERNEST GINSBERG Director January 19, 1995
NATHAN HASSON Director January 19, 1995
MORRIS HIRSCH Director January 19, 1995
(Jeffrey C. Keil) Director
PETER KIMMELMAN Director January 19, 1995
LEONARD LIEBERMAN Director January 19, 1995
PETER J. MANSBACH Director January 19, 1995
WILLIAM C. MACMILLEN, JR. Director January 19, 1995
MARTIN F. MERTZ Director January 19, 1995
JAMES L. MORICE Director January 19, 1995
(E. Daniel Morris) Director
JANET L. NORWOOD Director January 19, 1995
JOHN A. PANCETTI Director January 19, 1995
(Javier Perez de Cuellar) Director
VITO S. PORTERA Director January 19, 1995
WILBUR M. RABINOWITZ Director January 19, 1995
WILLIAM P. ROGERS Director January 19, 1995
DOV C. SCHLEIN Director January 19, 1995
(Jacques Tawil) Director
PETER WHITE Director January 19, 1995
Pursuant to the requirements of the Securities Act of 1933,
the Employee Benefits and Compensation Committee of the Board of
Directors of Republic National Bank of New York has duly caused
this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York,
State of New York, on January 19, 1995.
PROFIT SHARING AND SAVINGS PLAN OF
REPUBLIC NATIONAL BANK OF NEW YORK
JAMES L. MORICE
-----------------------------
Chairman
Employee Benefits and
Compensation Committee
EXHIBIT INDEX
Exhibit No. Description of Exhibits
4 Profit Sharing and Savings Plan of Republic
National Bank of New York, as amended
23 Consent of KPMG Peat Marwick
PROFIT SHARING AND SAVINGS PLAN
OF REPUBLIC NATIONAL BANK OF NEW YORK
(As Amended and Restated as of January 1, 1989)
<PAGE>
PROFIT SHARING AND SAVINGS PLAN
OF REPUBLIC NATIONAL BANK OF NEW YORK
INTRODUCTION
Republic National Bank of New York (the "Company")
adopted the Profit Sharing and Savings Plan of Republic National
Bank of New York (the "Plan"), effective as of January 1, 1968,
which Plan has been amended from time to time since that date.
The Plan is hereby further amended and restated in its
entirety to incorporate prior amendments and to comply with
recent changes in applicable law, effective as of January 1,
1989; provided, however, that provisions in the Plan which set
forth a different effective date shall be effective as of such
different effective date. Notwithstanding the foregoing, the
relevant required provisions of Model Amendment IV as set forth
in Internal Revenue Service Notice 87-2 are incorporated herein
by reference, effective as of January 1, 1987 or such other dates
specified therein; such Model Amendment IV provisions shall be
effective only for the Plan Years commencing January 1, 1987 and
January 1, 1988. Except as otherwise required by applicable law
or as otherwise specifically provided herein, any former Employee
who had attained his Severance from Service Date prior to the
effective date of any amendment of the Plan and is not reemployed
thereafter shall be entitled to benefits only in accordance with
the provisions of the Plan in effect at his Severance from
Service Date.
The Plan is intended to be a profit sharing plan which
complies with the provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), and with Section
401(a) of the Internal Revenue Code of 1986, as amended, in order
that the Plan constitute a qualified Plan under the Federal tax
laws. The Plan is also intended to be in compliance with Section
404(c) of ERISA. The Plan shall be construed, and all
ambiguities shall be resolved, in favor of an interpretation
consistent with its tax-qualified status and with the provisions
of ERISA.
<PAGE>
ARTICLE I
DEFINITIONS
The following terms as used herein shall have the
following meanings for purposes of the Plan unless the context
clearly requires or sets forth a different meaning:
1.1 "Account Balance" shall mean (i) the total of the
balances of a Member's Accounts set forth in Section 5.10
(including earnings thereon determined as of a particular
Valuation Date) and (ii) amounts transferred to the Trust Fund
pursuant to Article XI.
1.2 "Actual Contribution Percentage" shall have the
meaning set forth in Section 4.3.
1.3 "Actual Deferral Percentage" shall have the
meaning set forth in Section 4.2.
1.4 "After-Tax Employee Contributions" shall have the
meaning set forth in Section 3.4 of the Plan.
1.5 "Annual Additions" shall have the meaning set
forth in Section 4.4.6.
1.6 "Approved Absence" shall mean a leave of absence
granted by the Employer under rules uniformly applicable to all
Employees similarly situated. An Approved Absence shall be
granted for such purposes as vacation, military service in the
Armed Forces of the United States, layoff or sickness. For
purposes of the Plan, an Approved Absence shall not exceed 24
consecutive months from the first date of such absence, or, in
the case of a Member in military service of the Armed Forces of
the United States, that period during which his re-employment
rights are protected by law.
1.7 "Beneficiary" shall mean (i) any person(s)
entitled to receive benefits under Section 9.7 upon the death of
a Member or (ii) any person(s) designated by the Member to
receive benefits in accordance with Section 9.7 upon the death of
a Member.
1.8 "Board" shall mean the Board of Directors of the
Company.
1.9 "Code" shall mean the Internal Revenue Code of
1986, as amended from time to time. Reference to a specific
provision of the Code shall include such provision, any valid
regulation promulgated thereunder and any comparable provision of
future legislation that amends, supplements or supersedes such
provision.
1.10 "Committee" shall mean the Employee Benefits and
Compensation Committee appointed pursuant to Article XII of the
Plan to administer the Plan.
1.11 "Company" shall mean Republic National Bank of New
York.
1.12 "Compensation" shall mean the base salary
(excluding bonuses, expense allowances, pension and insurance
benefits, fees, overtime and other special payments) which is
paid by the Employer to an Employee prior to any authorized
Compensation reductions pursuant to Sections 3.1, 3.2 and 3.4 of
the Plan or pursuant to the Republic National Bank of New York
Flex Fund or pursuant to a nonqualified plan of deferred
compensation. Sections 3.1 and 3.4 set forth additional special
rules that apply for purposes of determining Compensation under
those Sections.
Notwithstanding the foregoing, subject to Section
401(a)(17) of the Code, effective January 1, 1989, the
Compensation earned by the Member for a Plan Year commencing
after 1988 that is used to calculate the Member's Compensation
shall not exceed $200,000 per Plan Year as adjusted for changes
in the cost of living under Section 415(d) of the Code.
Subject to Section 401(a)(17) of the Code, effective
January 1, 1994, the Compensation earned by the Member for a Plan
Year commencing after 1993 that is used to calculate the Member's
Compensation shall not exceed $150,000 per Plan Year as adjusted
by the Cost of Living Adjustment, as defined in the following
paragraph.
The Cost-of-Living Adjustment for any Plan Year shall
be the adjustment made under Section 415(d) of the Code for such
Plan Year, except that the base period for purposes of Section
415(d)(1)(A) shall be the calendar quarter beginning October 1,
1993.
If for any Plan Year after 1994, the excess of:
(a) $150,000, increased by the Cost-of-Living
Adjustment for the Plan Year, over
(b) the dollar amount in effect under Section
401(a)(17)(A) of the Code for the Plan Year
is equal to or greater than $10,000, then the $150,000 amount
under the Plan's definition of Compensation or Earnings under
this Article I (as previously adjusted under this Section) for
any subsequent Plan Year shall be increased by the amount of such
excess, rounded to the next lowest multiple of $10,000.
1.13 "Date of Hire" shall mean the first date (after
the Employer adopts the Plan) on which an Employee performs an
Hour of Service; provided, however, that in the case of a Period
of Severance of one year or more, an Employee's Date of Hire
shall mean the first date after such Period of Severance on which
he completes an Hour of Service.
1.14 "Defined Benefit Plan Fraction" shall have the
meaning set forth in Section 4.4.6(b).
1.15 "Defined Contribution Plan Fraction" shall have
the meaning set forth in Section 4.4.6(d).
1.16 "Disability" shall mean a disability as a result
of which the Member would be considered disabled under the terms
of the Republic National Bank of New York Long Term Disability
Plan, whether or not such Member elects to be covered by such
Plan.
1.17 "Earnings" means the types of "wages" reported on
Form W-2 for purposes of income tax withholding at the source, as
defined and modified by Section 1.415-2(d)(11)(ii) of the
Treasury Regulations.
Notwithstanding the foregoing, subject to Section
401(a)(17) of the Code, effective January 1, 1989, the Earnings
earned by the Member for a Plan Year commencing after 1988 that
is used to calculate the Member's Earnings shall not exceed
$200,000 per Plan Year as adjusted for changes in the cost of
living under Section 415(d) of the Code.
Subject to Section 401(a)(17) of the Code, effective
January 1, 1994, the Earnings earned by the Member for a Plan
Year commencing after 1993 that is used to calculate the Member's
Earnings shall not exceed $150,000 per Plan Year as adjusted by
the Cost of Living Adjustment, as defined in the last paragraph
of Section 1.12.
1.18 "Effective Date" shall mean January 1, 1968.
1.19 "Employee" shall mean any person who is employed
by the Company or an Employer on a permanent, salaried basis;
provided, however, that any such person who is employed outside
of the United States, other than an Employee on temporary
assignment abroad on behalf of the Employer for a scheduled
period of less than five (5) years, shall not be considered an
Employee for purposes of the Plan.
1.20 "Employer" shall mean the Company and any
corporation which adopts the Plan with the approval of the
Company.
For purposes of determining the Period of Service for
eligibility and vesting and for purposes of the contribution
limitation provisions under Article IV and the Top-Heavy
provisions of Article VII, "Employer" shall include any business
entity which is:
(a) a member of a controlled group of
corporations (as defined in Section 414(b) of the Code) in which
the Employer is a member;
(b) a trade or business under common control (as
defined in Section 414(c) of the Code) with the Employer;
(c) a predecessor employer (as defined in Section
414(a) of the Code);
(d) a member of an affiliated service group (as
defined in Section 414(m) of the Code) which includes the
Employer; or
(e) any other person, entity or organization
which must be aggregated with the Employer pursuant to Section
414(o) of the Code and the regulations thereunder.
1.21 "Employer Allocation" shall have the meaning set
forth in Section 3.3 of the Plan.
1.22 "ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended. Reference to a specific
provision of ERISA shall include such provision, any valid
regulation promulgated thereunder and any comparable provision of
future legislation that amends, supplements or supersedes such
provision.
1.23 "Family Member" shall mean an individual described
in Section 414(q)(6)(B) of the Code.
1.24 "Flex Fund" shall mean the Republic National Bank
of New York Flex Fund, as amended.
1.25 "Flex Fund Elective Deferral" shall have the
meaning set forth in Section 3.2 of the Plan.
1.26 "Forfeitures" shall mean the amounts forfeited by
Members upon termination of employment prior to full vesting
pursuant to Article V of the Plan.
1.27 "Highly Compensated Employee" shall mean an
individual described in Section 4.5 of the Plan.
1.28 "Hour of Service" shall mean each hour for which
an Employee is paid, or entitled to payment, for the performance
of duties for an Employer.
1.29 "Investment Option" shall mean a fund or
investment option established pursuant to Article VIII of the
Plan.
1.30 "Key Employee" shall have the meaning set forth in
Section 7.2 of the Plan.
1.31 "Member" shall mean any Employee included in the
Plan as provided in Article II hereof. A Member shall continue
to be a Member as long as he has an Account Balance hereunder.
1.32 "Nonhighly Compensated Employee" shall mean an
Employee of the Employer who is neither a Highly Compensated
Employee nor a Family Member of a Highly Compensated Employee
described in Section 414(q)(6)(A) of the Code.
1.33 "Normal Retirement Age" shall mean a Member's 65th
birthday.
1.34 (a) "One Year Period of Severance" shall mean a
twelve-month period beginning on the Severance from Service Date
and ending on the first anniversary of such Date during which the
Employee fails to perform an Hour of Service.
(b) For purposes only of determining whether an
Employee has incurred a One Year Period of Severance, an Employee
who is absent from work for maternity or paternity reasons shall
not attain a Severance from Service Date until the second
anniversary of the first date of such absence. For purposes of
this paragraph, an absence from work for maternity or paternity
reasons means an absence (1) by reason of the pregnancy of the
Employee, (2) by reason of a birth of a child of the Employee,
(3) by reason of the placement of a child with the Employee in
connection with the adoption of such child by such Employee, or
(4) for purposes of caring for such child for a period beginning
immediately following such birth or placement. This paragraph
shall not apply unless such Employee furnishes to the Committee
such timely information as the Committee may require to establish
that the absence from employment is for the reasons described
above and to establish the period for which there was such an
absence.
1.35 "Period of Absence" shall mean an absence from
service of 12 months or less, with or without pay, for any reason
other than a quit, discharge, retirement or death.
1.36 (a) "Period of Service" shall mean a period of
time commencing on the Employee's Date of Hire and ending on his
Severance from Service Date. A Period of Service shall include a
Period of Absence begun within such Period of Service.
(b) Subject to Sections 5.8 and 5.9, all Periods
of Service (and all Periods of Severance which are counted as
Periods of Service) shall, if noncontinuous, be aggregated; and
less than whole year Periods of Service (whether or not
consecutive) shall be aggregated on the basis that 12 months of
service equal a one year Period of Service. For purposes of this
determination, a Period of Severance shall be counted as a Period
of Service if:
(i) an Employee severs from service by
reason of a quit, discharge or Retirement, and then performs
an Hour of Service within 12 months of the Severance from
Service Date; or
(ii) an Employee severs from service by
reason of a quit, discharge or Retirement during a Period of
Absence, and then performs an Hour of Service within 12
months of the date on which he was first absent from
service.
(c) For purposes of this Section 1.36, all
service of an Employee with an Employer shall be considered
Periods of Service with the Employer. All service of an Employee
with an employer, substantially all of whose business assets were
acquired by an Employer which was rendered prior to the date of
acquisition shall be considered Periods of Service with the
Employer to the extent that such service was recognized as
"covered service" under a pension plan maintained by such
predecessor employer and provided that the Employer maintains
such predecessor pension plan.
(d) Notwithstanding the foregoing, a Member's
Period of Service as of January 1, 1989 shall not be less than
the service credited to such Member as of such date under the
provisions of the Plan in effect on December 31, 1988.
1.37 "Period of Severance" shall mean the period of
time commencing on the Severance from Service Date and ending on
the date on which the Employee again performs an Hour of Service.
1.38 "Personal Contributions" shall mean the
contribution described in Section 3.5 of the Plan.
1.39 "Plan" shall mean the Profit Sharing and Savings
Plan of Republic National Bank of New York, as amended, which
Plan is designated (in accordance with Section 401(a)(27) of the
Code) to be a profit sharing plan.
1.40 "Plan Year" shall mean the calendar year beginning
January 1 and ending December 31.
1.41 "Projected Annual Benefit" shall have the meaning
set forth in Section 4.4.6(c).
1.42 "Qualified Nonelective Contributions" shall mean
the contributions described in Section 3.6 of the Plan.
1.43 "Restatement Date" shall mean January 1, 1989.
1.44 "Retirement" shall mean a Member's retirement on
or after the earliest date such Member would be eligible to
retire under the terms of the Retirement Plan of Republic
National Bank of New York.
1.45 "Savings Plus Contributions" shall mean the
contributions made in accordance with Section 3.1.
1.46 (a) "Severance from Service Date" shall mean the
earliest of (i) the day on which an Employee quits, retires, is
discharged or dies or (ii) the anniversary of the first date of a
Period of Absence.
(b) An Employee who is absent on account of an
Approved Absence shall not be considered to have attained a
Severance from Service Date as a result of such absence; however,
if the Employee does not return to work upon the expiration of
such Approved Absence such Employee shall attain his Severance
from Service Date upon the earlier of the date such Approved
Absence expires or the date which is twelve months after the
first day of such Approved Absence.
1.47 "Top Heavy" shall have the meaning set forth in
Section 7.1 of the Plan.
1.48 "Trust or Trust Fund" shall mean the trust created
under this agreement, of which the Plan forms a part.
1.49 "Trustee" shall mean the Company, in its capacity
as trustee of the Plan, or any successor from time to time acting
as trustee of the Plan.
1.50 "Valuation Date" shall mean the last business day
of each quarter of a Plan Year and any other date as of which the
Committee determines that valuation of the Trust Fund is
necessary or advisable for the operation of the Plan.
<PAGE>
ARTICLE II
PARTICIPATION
2.1 Eligibility for Participation. (a) Each Employee
who is a Member of the Plan as of the Restatement Date shall
continue to be a Member of the Plan for all purposes of the Plan
as of the Restatement Date.
(b) Any Employee other than as described in
Section 2.1(a) shall become a Member on January 1 of the Plan
Year immediately following such Employee's Date of Hire;
provided, however, that such Member shall not have any
Contributions set forth in Article III of the Plan, other than
Savings Plus Contributions and/or After-Tax Employee
Contributions, made on his behalf under the Plan prior to the
first anniversary of such Employee's Date of Hire.
(c) Subject to Sections 3.2.3, 3.3.2 and 3.6, an
Employee shall cease to be eligible to have Contributions made on
his behalf under Article III of the Plan upon the Employee's
termination of employment with the Employer for any reason. Upon
such individual's reemployment by the Employer, the rules with
respect to new Members set forth in Section 2.1(b) of the Plan
shall apply to such Employee; provided, however, that:
(i) If such Employee had met the eligibility
requirements set forth in Sections 2.1(a) and 2.1(b) above
prior to his incurrence of a Severance from Service Date,
then such Employee shall be eligible to have Savings Plus
Contributions and/or After-Tax Employee Contributions made
on his behalf under the Plan as of the January 1 of the Plan
Year immediately following such Employee's date of
reemployment and to have other Contributions set forth in
Article III of the Plan allocated to the relevant Account on
his behalf, in accordance with the terms of the Plan, as of
the next date that such Contributions are allocated under
the Plan following his date of reemployment.
(ii) If such Employee had not met the
eligibility requirements set forth in Sections 2.1(a) and
2.1(b) above prior to his incurrence of a Severance from
Service Date, the following rules shall apply with respect
to such Employee upon his reemployment:
1. If such Employee had incurred a
Period of Severance of less than twelve months, such
Employee shall receive Period of Service credit for such
Period of Severance in addition to his Period of Service
credit accrued prior to this Severance from Service Date.
2. If such Employee had incurred a
Period of Severance of at least twelve months, such Employee
shall, subject to Section 5.9(a), retain his Period of
Service credit accrued prior to his Severance from Service
Date but shall not receive Period of Service credit for his
Period of Severance.
3. Such Employee shall be eligible to
receive Employer Allocations and/or Flex Fund Elective
Deferrals under the terms of the Plan after such Employee
shall have completed a twelve month Period of Service as
determined under this Section 2.1(c).
(d) No individual who performs services for an
Employer as a leased employee may participate in the Plan. For
purposes of this Section (d), "leased employee" shall mean any
individual who:
(i) provides services pursuant to an
agreement between an Employer and any other person or entity
(hereinafter referred to as "the leasing organization");
(ii) has performed such services for an
Employer on a substantially full-time basis for a period of
at least one year;
(iii) performed services of a type
historically performed in the business field of an Employer
by employees;
(iv) is not a participant in a qualified
money purchase pension plan maintained by the leasing
organization which provides for a nonintegrated employer
contribution of at least ten percent (10%) of such person's
annual compensation and provides for immediate participation
and full and immediate vesting; and
(v) meets such other requirements as may be
set forth in Section 414(n) of the Code.
Notwithstanding the foregoing, leased employees shall be
considered Employees for purposes of the employee benefit
requirements set forth in Section 414(n)(3) of the Code.
2.2 Transferred Bankers Trust Employees. Those
employees of Bankers Trust Company who on or about the date of
closing of the purchase by the Company of certain banking offices
of Bankers Trust Company (hereinafter referred to as the
"Purchase Date") became Employees of this Company are eligible
for membership under this Plan; such employees are subject,
however, to the following provisions:
(a) Each such Employee's prior period of service with
Bankers Trust Company shall be deemed, for purposes of
eligibility for Plan membership, to have been performed in the
service of this Company;
(b) Each such Employee is eligible for Plan membership
as of such Purchase Date or, if later, the date such Employee
first satisfied the requirements of Section 2.1.
2.3 Williamsburgh Savings Bank Employees. Those
Employees who were employees of Williamsburgh Savings Bank on
January 1, 1988 are eligible for membership under this Plan as of
such date or, if later, the date such Employees first satisfied
the requirements of Section 2.1. Notwithstanding anything else
in the Plan to the contrary, each such Employee's period of
service with Williamsburgh Savings Bank prior to January 1, 1988,
shall, for purposes of eligibility for Plan membership and for
vesting purposes, be included in such Employee's Period of
Service under the Plan.
2.4 Manhattan Savings Bank Employees. Those Employees
who were employees of Manhattan Savings Bank on January 1, 1991
shall become Members under this Plan as of such date or, if
later, the date such Employees first satisfied the requirements
of Section 2.1. Notwithstanding anything else in the Plan to the
contrary, each such Employee's prior period of service with
Manhattan Savings Bank shall be deemed, for purposes of
eligibility for Plan membership and for vesting purposes, to have
been performed in the service of the Company.
2.5 SafraBank Florida Employees. Those Employees who
were employees of SafraBank Florida on November 20, 1992 are
eligible for membership under this Plan as of January 1, 1993 or,
if later, the date such Employees first satisfied the
requirements of Section 2.1. Notwithstanding anything else in
the Plan to the contrary, each such Employee's period of service
with SafraBank Florida prior to January 1, 1993, shall, for
purposes of eligibility for Plan membership and for vesting
purposes, be included in such Employee's Period of Service under
the Plan. Also, other special rules with respect to such
Employees are set forth in Exhibit B attached to the Plan.
2.6 SafraBank California Employees. Those Employees
who were employees of SafraBank California on September 21, 1993
shall become Members under this Plan as of January 1, 1994 or, if
later, the date such Employees first satisfied the requirements
of Section 2.1. Notwithstanding anything else in the Plan to the
contrary, each such Employee's prior period of service with
SafraBank California shall be deemed, for purposes of eligibility
for Plan membership and for vesting purposes, to have been
performed in the service of the Company. Also, other special
rules with respect to such Employees are set forth in Exhibit B
attached to the Plan.
<PAGE>
ARTICLE III
CONTRIBUTIONS
3.1 Savings Plus Contributions. Each Member may
elect, in accordance with Section 3.1.1, to have the Employer
reduce such Member's Compensation for a Plan Year by an amount
ranging from one percent (1%) to ten percent (10%) of the
Member's annual Compensation and have such amounts contributed to
the Member's Savings Plus Account; provided, however, that the
sum of a Member's Savings Plus Contributions and After-Tax
Employee Contributions may not exceed 15% of the Member's annual
Compensation. For purposes of the previous sentence, the
Member's Compensation shall be determined as of the September 1
of the Plan Year immediately preceding the Plan Year of the
contribution; provided, however, that with respect to the
Member's first Plan Year of participation, the Member's
Compensation shall be determined as of his Date of Hire, if this
date is later than September 1 of the preceding Plan Year. The
Committee may, from time to time, in its discretion, modify the
percentage of Compensation set forth in the preceding sentence
which may be contributed to the Plan pursuant to this Section
3.1. The percentage of Savings Plus Contributions shall be
designated in whole percentage points on such form as may be
prescribed by the Committee in accordance with Section 3.1.1.
Any contributions under this Section 3.1 shall be credited to the
Member's Savings Plus Account and shall be made not later than
ninety (90) days from the date such Member would have received
his Compensation had he not elected to defer such amounts under
this Section.
3.1.1 Election. The election pursuant to Section
3.1 hereof shall be made by an Employee in writing, on such
form as may be prescribed by the Committee, prior to his
first becoming a Member and, thereafter, during the annual
open enrollment period of the Plan Year immediately
preceding the Plan Year for which the election is to be
effective. Such election shall be deemed to authorize the
Employer to make reductions to a Member's Compensation for
the purpose of making contributions under Section 3.1.
3.1.2 Change in Rate of Savings Plus
Contributions. A Member may elect to have the Employer
decrease or increase the rate of Savings Plus Contributions
on such Member's behalf for the following Plan Year by
filing a notice to that effect with the Committee. The
notice pursuant to this Subsection 3.1.2 shall be filed
during the annual open enrollment period of the Plan Year
immediately preceding the Plan Year with respect to which
such change in the rate of Savings Plus Contributions is to
be effective.
3.1.3 Suspension of Savings Plus Contributions.
A Member may suspend Savings Plus Contributions for a Plan
Year at any time by filing a notice to that effect with the
Committee. Such suspension shall become effective as soon
as practicable after the notice is received by the
Committee. Subject to Section 6.3(b), such Member may
resume having Savings Plus Contributions made on his behalf
as of the first day of a Plan Year subsequent to such
suspension by filing a notice to that effect during the
annual open enrollment period with the Committee.
3.1.4 No Contingency. No benefits (as described
in Section 1.401(k)-1(e)(6)(ii) of the Treasury
Regulations), other than Matching Contributions (as defined
in Section 1.401(k)-1(g)(9) of the Treasury Regulations),
Qualified Matching Contributions (as defined in Section
1.401(k)-1(g)(13)(i) of the Treasury Regulations) or any
benefit that is provided at the Employee's election under
the Flex Fund (or any other such plan as described in
Section 125 of the Code) in lieu of an elective deferral
under this Plan, may be conditioned upon an Employee's
election to defer under Section 3.2 may be conditioned upon
an Employee's election to defer under Section 3.1.
3.2 Flex Fund Elective Deferral. Each Member who has
met the eligibility requirements set forth in Section 2.1 of the
Plan and who has elected under the Flex Fund to have the Employer
contribute an amount to the Plan on the Member's behalf for a
Plan Year shall have such amount contributed to the Plan as a
Flex Fund Elective Deferral for such Plan Year. Any
contributions under this Section 3.2 shall be subject to the
provisions of the Flex Fund and shall be credited to the Member's
Flex Fund Elective Deferral Account.
3.2.1 Election. The election pursuant to Section
3.2 hereof shall be made by a Member in writing, in
accordance with the terms of the Flex Fund.
3.2.2 No Contingency. No benefits (as described
in Section 1.401(k)-1(e)(6)(ii) of the Treasury
Regulations), other than Matching Contributions (as defined
in Section 1.401(k)-1(g)(9) of the Treasury Regulations),
Qualified Matching Contributions (as defined in Section
1.401(k)-1(g)(13)(i) of the Treasury Regulations) or any
benefit that is provided at the Employee's election under
the Flex Fund (or any other such plan as described in
Section 125 of the Code) in lieu of an elective deferral
under this Plan, may be conditioned upon an Employee's
election to defer under Section 3.2.
3.2.3 Allocation after Termination of Employment.
Notwithstanding the foregoing, a Member whose employment
with the Employer terminates for any reason other than
death, Disability or Retirement shall not receive a Flex
Fund Elective Deferral for the Plan Year in which such
termination occurs.
3.3 Employer Allocations. The Employer may contribute
as Employer Allocations to the Trust Fund for each year such
amount, if any, as shall be determined by the Board of Directors
of the Company in its discretion, but not exceeding the maximum
amount which would be deductible by the Employer for such Plan
Year for income tax purposes under the provisions of Section
404(a)(3) of the Code. Such payment shall be made before the due
date of the Federal Income Tax Return for such Plan Year,
including any extensions thereof.
3.3.1 Method of Allocation. If the Employer
makes an Employer Allocation for a Plan Year, such Employer
Allocation shall be allocated among the Members of the Plan
who are in the employ of the Employer on the last day of the
Plan Year and among Members whose death, Disability or
Retirement shall have occurred during such Plan Year or who
have been granted an Approved Absence during such Plan Year
which has not expired as of the last day of the Plan Year.
Such allocation shall be credited to the account of each
such Member as of the end of such Plan Year in an amount
determined by following the steps set forth in Exhibit A
attached to the Plan.
3.3.2 Allocation after Termination of Employment.
A Member whose employment with the Employer terminates for
any reason other than death, Disability or Retirement shall
not be allocated a share of the Employer Allocations of the
Employer for the Plan Year in which such termination occurs.
3.4 After-Tax Employee Contributions. Effective as of
January 1, 1991, each Member may elect, in accordance with
Section 3.4.1, to have the Employer reduce such Member's
Compensation for a Plan Year by an amount ranging from one
percent (1%) to ten percent (10%) of the Member's annual
Compensation and to have such amounts contributed to the Member's
After-Tax Employee Contribution Account; provided, however, that
the sum of a Member's Savings Plus Contributions and After-Tax
Employee Contributions may not exceed 15% of the Member's annual
Compensation. For purposes of the previous sentence, the
Member's Compensation shall be determined as of the September 1
of the Plan Year immediately preceding the Plan Year of the
contribution; provided, however, that with respect to the
Member's first Plan Year of participation, the Member's
Compensation shall be determined as of his Date of Hire, if this
date is later than September 1 of the preceding Plan Year. The
Committee may, from time to time, in its discretion, modify the
percentage of Compensation set forth in the preceding sentence
which may be contributed to the Plan pursuant to this Section
3.4. The percentage of After-Tax Employee Contributions shall be
designated in whole percentage points on such form as may be
prescribed by the Committee in accordance with Section 3.4.1.
Any contributions under this Section 3.4 shall be credited to the
Member's After-Tax Employee Contribution Account and shall be
made not later than ninety (90) days from the date such Member
would have received his Compensation had he not elected to
contribute such amounts under this Section.
3.4.1 Election. The election pursuant to Section
3.4 hereof shall be made by a Member in writing, on such
form as may be prescribed by the Committee, upon first
becoming a Member and, thereafter, during the annual open
enrollment period of the Plan Year immediately preceding the
Plan Year for which the election is to be effective. Such
election shall be deemed to authorize the Employer to make
reductions to a Member's Compensation for the purpose of
making contributions under Section 3.4.
3.4.2 Change in Rate of After-Tax Employee
Contributions. A Member may elect to decrease or increase
the rate of After-Tax Employee Contributions made by such
Member for the following Plan Year by filing a notice to
that effect with the Committee. The notice pursuant to this
Subsection 3.4.2 shall be filed during the annual open
enrollment period of the Plan Year immediately preceding the
Plan Year with respect to which such change in the rate of
After-Tax Employee Contributions is to be effective.
3.4.3 Suspension of After-Tax Employee
Contributions. A Member may suspend After-Tax Employee
Contributions for a Plan Year at any time by filing a notice
to that effect with the Committee. Such suspension shall
become effective as soon as practicable after the notice is
received by the Committee. Subject to Section 6.3(b), such
Member may resume making After-Tax Employee Contributions as
of the first day of a Plan Year subsequent to such
suspension by filing a notice to that effect with the
Committee.
3.5 Personal Contributions. As of October 1, 1974, no
further contributions are required to be made by Members.
Subject to withdrawal rights under Section 6.5 of the Plan,
Personal Contributions contributed by Members prior to October 1,
1974 shall remain in trust subject to the provisions of the Plan
until the Member terminates employment, retires or dies.
Personal Contributions may also include any amounts described in
Section 3.5 of Article II of the Plan as in effect prior to the
Restatement. Personal Contributions shall be invested and paid
pursuant to the provisions of Article VI and Article VIII of the
Plan.
3.6 Qualified Nonelective Contributions. The Employer
may make "Qualified Nonelective Contributions," as defined in
Section 1.401(k)-1(g)(13)(ii) of the Treasury Regulations, with
respect to Members who are Nonhighly Compensated Employees and
consider such Contributions as Deferred Contributions for
purposes of enabling the Employer to pass the Actual Deferral
Percentage test set forth in Section 4.2 or as Contribution
Percentage Amounts for purposes of enabling the Employer to pass
the Actual Contribution Percentage test set forth in Section 4.3.
If the Employer makes Qualified Nonelective
Contributions, such Qualified Nonelective Contributions shall be
allocated to Members who are Nonhighly Compensated Employees in
the following manner. Qualified Nonelective Contributions shall
first be allocated to the Member who received the least Earnings
from the Employer during the Plan Year for which the Qualified
Nonelective Contributions are made, in an amount up to 10% of
such Member's Earnings. In the event that Qualified Nonelective
Contributions made on behalf of such Member do not enable the
Plan to pass the Actual Deferral Percentage test and/or the
Actual Contribution Percentage test, then additional Qualified
Nonelective Contributions shall be allocated to the Member with
the next lowest Earnings, in an amount up to 10% of such Member's
Earnings. This allocation procedure shall be repeated until the
Actual Deferral Percentage test and/or the Actual Contribution
Percentage test is satisfied. Notwithstanding the foregoing,
Qualified Nonelective Contributions shall not be made on behalf
of a Member to the extent that such contributions will result in
contributions being made on behalf of such Member to exceed the
limits set forth in Section 4.4.
3.7 Transferred Bankers Trust Employees. A former
Bankers Trust employee who pursuant to Section 2.2 hereof became
an Eligible Employee shall be one hundred percent (100%) vested
in his account balance under the Bankers Trust Company Savings
Incentive Plan which had been transferred to the Trust hereunder.
The portion of such transferred account balance which
was attributed to such Employee's own contributions shall be
treated under this Plan as a Personal Contribution by such Member
pursuant to Section 3.5 hereof.
The portion of such transferred account balance which
was attributed to contributions by Bankers Trust Company shall be
treated under this Plan as a contribution by the Company for the
benefit of such Member.
3.8 Williamsburgh Savings Bank Employees. A
Williamsburgh Savings Bank employee who pursuant to Section 2.3
hereof became a Member shall be one hundred percent (100%) vested
in his account balance under the Williamsburgh Savings Bank
Thrift Incentive Plan which had been rolled over into the Trust
hereunder. Such rollovers shall be subject to the provisions set
forth in Section 11.1.
3.9 Manhattan Savings Bank Employees. A Manhattan
Savings Bank employee who pursuant to Section 2.4 hereof became a
Member shall be one hundred percent (100%) vested in the portion
of his account balance under the Manhattan Savings Bank Employee
Thrift Plan in RSI Retirement Trust (the "Manhattan Thrift Plan")
which had been transferred to the Trust hereunder. Such
transfers shall be subject to the provisions set forth in Section
11.2.
3.10 Payment of Contributions. Savings Plus
Contributions and After-Tax Employee Contributions shall be paid
to the Trust Fund and invested pursuant to Article VIII of the
Plan as soon as administratively practicable after the payroll
period for which such contributions have been made. All other
contributions under this Article shall be paid to the Trust Fund
and invested pursuant to Article VIII of the Plan prior to the
due date for filing the Employer's Federal Income Tax Return for
its fiscal tax year, including any extensions thereto.
3.11 Special Rule for Deferrals. Notwithstanding
anything else in the Plan to the contrary, a Member may only
defer Compensation that has not been received or made available
to such Member.
<PAGE>
ARTICLE IV
LIMITATIONS ON CONTRIBUTIONS
4.1 Maximum Dollar Amount of Savings Plus
Contributions and/or Flex Fund Elective Deferrals. No Member
shall be permitted to have Deferred Contributions made under this
Plan, and/or any "elective deferrals" (as defined in Section
402(g)(3) of the Code) under any other qualified plan maintained
by the Employer, during any taxable year in excess of the lesser
of the dollar limitation set by the Company for such taxable year
and the dollar limitation contained in Section 402(g) of the Code
in effect at the beginning of such taxable year.
4.1.1 Distribution of Excess Deferrals.
(a) In General. A Member who has Excess
Deferrals for the Member's taxable year may assign to this
Plan any Excess Deferrals made during such taxable year by
notifying the Committee on or before March 1 of the
following year, in writing, of the amount of the Excess
Deferrals to be assigned to the Plan.
Notwithstanding any other provision of the Plan,
Excess Deferrals plus any income and minus any loss
allocable thereto, shall be distributed no later than
April 15 to any Member to whose Deferral Account Excess
Deferrals were assigned for the preceding taxable year and
who claims Excess Deferrals for such taxable year.
(b) Determination of Income or Loss. Excess
Deferrals shall be adjusted for any income or loss up to the
last day of the Plan Year in which the Excess Deferrals were
made. The income or loss allocable to Excess Deferrals is
the income or loss allocable to the Member's Deferral
Account for the taxable year multiplied by a fraction, the
numerator of which is such Member's Excess Deferrals for the
year and the denominator of which is the total of the
Member's Deferral Account balance without regard to any
income or loss occurring during such taxable year.
(c) If Excess Deferrals have previously been
distributed within the Plan Year, then the Plan shall offset
such distribution from the amount of the Member's Excess
Contributions (as defined in Section 4.2.2(d)) to be
distributed for such Plan Year. In addition, the amount of
Excess Deferrals that may be distributed for a Member by the
Plan for a Plan Year shall be reduced by the amount of
Excess Contributions previously distributed for such Plan
Year.
\06 Definitions. For purposes of this Article:
(1) "Deferral Account" shall mean the Savings Plus
Contribution Account and the Flex Fund Elective
Deferral Account, collectively.
(2) "Deferred Contributions" shall mean a Member's
Savings Plus Contributions and Flex Fund Elective
Deferrals, collectively.
(3) "Excess Deferrals" shall mean those Deferred
Contributions that are includible in a Member's
gross income under Section 402(g) of the Code to
the extent that such Member's Deferred
Contributions for a taxable year exceed the dollar
limitation under such Code Section.
4.2 Actual Deferral Percentage Test. The Actual
Deferral Percentage (hereinafter "ADP") for Members who are
Highly Compensated Employees for each Plan Year and the ADP for
Members who are Nonhighly Compensated Employees for the same Plan
Year must satisfy one of the following tests:
(1) The ADP for Members who are Highly Compensated
Employees for the Plan Year shall not exceed the
ADP for Members who are Nonhighly Compensated
Employees for the same Plan Year multiplied by
1.25; or
(2) The ADP for Members who are Highly Compensated
Employees for the Plan Year shall not exceed the
ADP for Members who are Nonhighly Compensated
Employees for the same Plan Year multiplied by
2.0, provided that the ADP for Members who are
Highly Compensated Employees does not exceed the
ADP for Members who are Nonhighly Compensated
Employees by more than two (2) percentage points
or such lesser amount as the Secretary of the
Treasury shall prescribe to prevent the multiple
use of this alternative limitation with respect to
any Highly Compensated Employee.
4.2.1 Special Rules.
(1) The ADP for any Member who is a Highly Compensated
Employee for the Plan Year and who is eligible to
have Deferred Contributions (and/or Qualified
Nonelective Contributions, if treated as Deferred
Contributions for purposes of the ADP test)
allocated to his or her accounts under two or more
arrangements, described in Section 401(k) of the
Code, that are maintained by the Employer, shall
be determined as if such Deferred Contributions
(and, if applicable, Qualified Nonelective
Contributions) were made under a single arrange-
ment. If a Highly Compensated Employee parti-
cipates in two or more cash or deferred ar-
rangements that have different Plan Years, all
cash or deferred arrangements ending with or
within the same calendar year shall be treated as
a single arrangement.
(2) In the event that this Plan satisfies the require-
ments of Section 401(k), 401(a)(4), or 410(b) of
the Code only if aggregated with one or more other
plans, or if one or more other plans satisfy the
requirements of such Sections of the Code only if
aggregated with this Plan, then this Section shall
be applied by determining the ADP of Employees as
if all such plans were a single plan. Notwith-
standing the foregoing, for Plan Years beginning
after December 31, 1989, plans may be aggregated
in order to satisfy Section 401(k) of the Code
only if they have the same Plan Year.
(3) For purposes of determining the ADP of a Member
who is a 5-percent owner or one of the ten most
highly-paid Highly Compensated Employees, the
Deferred Contributions (and/or Qualified
Nonelective Contributions, if treated as Deferred
Contributions for purposes of the ADP test) and
Earnings of such Member shall include the Deferred
Contributions (and, if applicable, Qualified
Nonelective Contributions) and Earnings of Family
Members for the Plan Year if such inclusion would
result in a greater ADP. In the event that
amounts with respect to such Highly Compensated
Employees and Family Members are aggregated under
the previous sentence, then Family Members with
respect to such Highly Compensated Employees shall
be disregarded as separate Employees in determin-
ing the ADP both for Members who are Nonhighly
Compensated Employees and for Members who are
Highly Compensated Employees.
(4) For purposes of the ADP test, only Deferred Con-
tributions and Qualified Nonelective Contributions
made before the last day of the twelve-month
period immediately following the Plan Year to
which such contributions relate shall be taken
into account.
(5) The Employer shall maintain records sufficient to
demonstrate satisfaction of the ADP test and the
amount of Qualified Nonelective Contributions used
in such test.
(6) The determination and treatment of the ADP amounts
of any Member shall satisfy such other
requirements as may be prescribed by the Secretary
of the Treasury.
4.2.2 Correction of Excess Contributions.
(a) Corrective Distributions.
(i) Notwithstanding any other provision of
the Plan, Excess Contributions, plus any
income and minus any loss allocable
thereto, shall generally be distributed
within 2-/2 months after the close of the
Plan Year (but in no event later than
the last day of the Plan Year immedi-
ately following the close of the Plan
Year) in which such Excess Contributions
arose, to Members to whose Accounts such
Excess Contributions were allocated for
the preceding Plan Year. Such distribu-
tions shall be made to Highly Compen-
sated Employees by leveling the highest
deferral ratios until the ADP test set
forth in Section 4.2 is satisfied.
Excess Contributions shall be allocated
to Members who are subject to the family
member aggregation rules of Section
414(q)(6) of the Code in the manner
prescribed by the regulations.
(ii) Determination of Income or Loss. Excess
Contributions shall be adjusted for any
income or loss up to the last day of the
Plan Year in which the Excess Contribu-
tions were made. The income or loss
allocable to Excess Contributions is the
income or loss allocable to the Member's
Deferral Account (and, if applicable,
the Member's Qualified Nonelective
Contributions Account) for the Plan Year
multiplied by a fraction, the numerator
of which is such Member's Excess Contri-
butions for the year and the denominator
of which is the portion of the Member's
Account Balance attributable to Deferred
Contributions (and Qualified Nonelective
Contributions, if such contributions are
included in the ADP test) as of the end
of the Plan Year without regard to any
income or loss occurring during such
Plan Year.
(iii) Excess Contributions shall be dis-
tributed from the Member's Qualified
Nonelective Contribution Account only to
the extent that such Excess Contribu-
tions exceed the balance in the Member's
Deferred Account.
(iv) If a Member receives a distribution of
Excess Contributions and Excess
Deferrals during one Plan Year, such
distributions are to be coordinated in
accordance with the provisions set forth
in Section 4.1.1(c).
(b) Alternative Correction Methods.
\06 The Employer may make Qualified Nonelec-
tive Contributions with respect to Mem-
bers who are Nonhighly Compensated Em-
ployees and consider such Contributions
as Deferred Contributions for purposes
of computing the ADPs. Notwithstanding
the foregoing, Qualified Nonelective
Contributions may be included only if
such contributions comply with the
requirements set forth in Treasury
Regulation Section 1.401(k)-l(g)(13).
(ii) (A) The Committee may prospectively
decrease a Member's authorized
reduction under Section 3.1, if the
Member is a Highly Compensated
Employee and that action is
necessary in order to satisfy the
Actual Deferral Percentage test.
The Committee shall first decrease,
to the extent necessary, the
authorized reductions of all such
Highly Compensated Employees who
authorized the largest percentage
reductions in their Compensation,
determined without regard to this
Section, until the Compensation
percentage reduction for such
Highly Compensated Employees is
equal to the next largest Compen-
sation percentage reduction level
authorized by Highly Compensated
Employees. If the Committee
determines further decreases are
necessary, it shall continue to
decrease the authorized reductions
of Highly Compensated Employees
whose authorized reductions in
their Compensation are then the
largest, until the Compensation
percentage reduction for such
Highly Compensated Employees is
equal to the next largest Compen-
sation percentage reduction level
authorized by Highly Compensated
Employees. The Committee shall
continue to make such decreases
until it determines that the Actual
Deferral Percentage tests in
Section 401(k)(3)(A) of the Code
have been met.
(B) If the Committee determines, in its
sole discretion, that it is no
longer necessary to decrease a
Highly Compensated Employee's
authorized Compensation reduction
under this Section, the Committee
shall, on a prospective basis,
increase the authorized Compen-
sation reductions of all Highly
Compensated Employees who had such
reductions decreased, until all
such Highly Compensated Employees
have their authorized Compensation
reductions restored to their
originally authorized level or to
the level at which the Committee
determines that the Actual Deferral
Percentage tests of Section
401(k)(3)(A) of the Code will be
met, whichever occurs first.
(C) When increasing or decreasing any
Highly Compensated Employee's
authorized Compensation reduction
under this Section, the Committee
shall treat all Highly Compensated
Employees who authorized the same
reduction in their Compensation in
the same manner.
(iii) The Plan may use any other correction
method available under Section 401(k) of
the Code and the Treasury Regulations
thereunder.
(c) Any action taken by the Committee under this
Section may be taken without the consent of,
or prior notice to, the affected Highly Com-
pensated Employees, but such Highly Compen-
sated Employees shall be promptly informed in
writing of the Committee's action.
(d) Definitions. For purposes of this Section,
(1) "Actual Deferral Percentage (ADP)"
means, for a specified group of Members
for a Plan Year, the average (to the
nearest hundredth of a percentage
point), of the ratios, calculated sepa-
rately for each Member in such group (to
the nearest hundredth of a percentage
point), of (A) the amount of Deferred
Contributions (and Qualified Nonelective
Contributions that are treated as De-
ferred Contributions under this Section
4.2) actually paid over to the Trust
Fund on behalf of such Member for the
Plan Year to (B) the Member's Earnings
for such Plan Year (whether or not the
Employee was a Member for the entire
Plan Year). For purposes of this clause
(d)(1), Deferred Contributions on behalf
of any Member shall include: (i) any
Deferred Contributions made pursuant to
the Member's deferral election, includ-
ing Excess Deferrals, but excluding
Deferred Contributions that are taken
into account in the Actual Contribution
Percentage test set forth in Section 4.3
(provided the ADP test is satisfied both
with and without exclusion of these
Deferred Contributions); and (ii) at the
election of the Employer, Qualified
Nonelective Contributions. For purposes
of computing ADPs, an Employee who would
be a Member but for the failure to make
Deferred Contributions shall be treated
as a Member on whose behalf no Deferred
Contributions are made.
(2) "Deferral Account" shall mean the
Savings Plus Contribution Account and
the Flex Fund Elective Deferral Account,
collectively.
(3) "Deferred Contributions" shall mean a
Member's Savings Plus Contributions and
Flex Fund Elective Deferrals,
collectively.
(4) "Excess Contributions" shall mean with
respect to any Plan Year, the excess of:
(A) The aggregate amount of Deferred
Contributions (and Qualified Non-
elective Contributions that are
treated as Deferred Contributions
under this Section 4.2) actually
taken into account in computing the
ADP of Highly Compensated Employees
for such Plan Year, over
(B) The maximum amount of such
Contributions permitted by the ADP
test (determined by reducing
contributions made on behalf of
Highly Compensated Employees in
order of the ADPs, beginning with
the highest of such percentages).
4.3 Actual Contribution Percentage Test. The Actual
Contribution Percentage (hereinafter "ACP") for Members who are
Highly Compensated Employees for each Plan Year and the ACP for
Members who are Nonhighly Compensated Employees for the same Plan
Year must satisfy one of the following tests:
(1) The ACP for Members who are Highly Compensated
Employees for the Plan Year shall not exceed the
ACP for Members who are Nonhighly Compensated Em-
ployees for the same Plan Year multiplied by 1.25;
or
(2) The ACP for Members who are Highly Compensated
Employees for the Plan Year shall not exceed the
ACP for Members who are Nonhighly Compensated Em-
ployees for the same Plan Year multiplied by 2.0,
provided that the ACP for Members who are Highly
Compensated Employees does not exceed the ACP for
Members who are Nonhighly Compensated Employees by
more than two (2) percentage points or such lesser
amount as the Secretary of the Treasury shall pre-
scribe to prevent the multiple use of this
alternative limitation with respect to any Highly
Compensated Employee.
4.3.1 Special Rules.
(1) If the sum of the ADP and ACP of Highly Com-
pensated Employees subject to either or both tests
exceeds the Aggregate Limit, then the ACP of those
Highly Compensated Employees who also have
Deferred Contributions made on their behalf will
be reduced (beginning with such Highly Compensated
Employee whose ACP is the highest) so that the
limit is not exceeded. The amount by which each
Highly Compensated Employee's Contribution
Percentage Amounts is reduced shall be treated as
an Excess Aggregate Contribution. The ADP and ACP
of the Highly Compensated Employees are determined
after any corrections required to meet the ADP and
ACP tests. Multiple use does not occur if both
the ADP and ACP of the Highly Compensated
Employees does not exceed 1.25 multiplied by the
ADP and ACP of the Nonhighly Compensated
Employees.
(2) The ACP for any Member who is a Highly Compensated
Employee for the Plan Year and who is eligible to
have Contribution Percentage Amounts allocated to
his or her accounts under two or more plans de-
scribed in Section 401(a) of the Code or arrange-
ments described in Section 401(k) of the Code,
that are maintained by the Employer, shall be
determined as if the total of such Contribution
Percentage Amounts were made under a single
arrangement. If a Highly Compensated Employee
participates in two or more such plans or ar-
rangements that have different plan years, all
such plans or arrangements ending with or within
the same calendar year shall be treated as a
single arrangement.
(3) In the event that this Plan satisfies the require-
ments of Sections 401(m), 401(a)(4) or 410(b) of
the Code only if aggregated with one or more other
plans, or if one or more other plans satisfy the
requirements of such Sections of the Code only if
aggregated with this Plan, then this Section shall
be applied by determining the ACP of Employees as
if all such plans were a single plan. Notwith-
standing the foregoing, plans may be aggregated in
order to satisfy Section 401(m) of the Code only
if they have the same Plan Year.
(4) For purposes of determining the ACP of a Member
who is a 5-percent owner or one of the ten most
highly paid Highly Compensated Employees, the
Contribution Percentage Amounts and Earnings of
such Member shall include the Contribution
Percentage Amounts and Earnings of Family Members
for the Plan Year, if such inclusion would result
in a greater ACP. In the event that amounts with
respect to such Highly Compensated Employees and
Family Members are aggregated under the previous
sentence, then Family Members with respect to such
Highly Compensated Employees shall be disregarded
as separate Employees in determining the ACP both
for Members who are Nonhighly Compensated
Employees and for Members who are Highly
Compensated Employees.
(5) For purposes of the ACP tests, After-Tax Employee
Contributions are considered to have been made in
the Plan Year in which contributed to the Trust
Fund. Qualified Nonelective Contributions and
Matching Contributions will be considered made for
a Plan Year if made no later than the end of the
twelve-month period beginning on the day after the
close of the Plan Year.
(6) The Employer shall maintain records sufficient to
demonstrate satisfaction of the ACP test and the
amount of Qualified Nonelective Contributions
and/or Deferred Contributions used in such test.
(7) The determination and treatment of the ACP amounts
of any Member shall satisfy such other
requirements as may be prescribed by the Secretary
of the Treasury.
4.3.2 Correction of Excess Aggregate Contributions.
(a) Corrective Distributions.
(i) Notwithstanding any other provision of
the Plan, Excess Aggregate Con-
tributions, plus any income and minus
any loss allocable thereto, shall gene-
rally be distributed within 2-1/2 months
after the close of the Plan Year (but in
no event later than the last day of the
Plan Year immediately following the
close of the Plan Year) in which such
Excess Aggregate Contributions arose, to
Members to whose Accounts such Excess
Aggregate Contributions were allocated
for the preceding Plan Year. Such dis-
tributions shall be made to Highly Com-
pensated Employees by leveling the
highest contribution ratios until the
ACP test set forth in Section 4.3 is
satisfied. Excess Aggregate
Contributions shall be allocated to
Members who are subject to the family
member aggregation rules of Section
414(q)(6) of the Code in the manner
prescribed by the regulations.
(ii) Determination of Income or Loss. Excess
Aggregate Contributions shall be
adjusted for any income or loss up to
the last day of the Plan Year in which
the Excess Aggregate Contributions were
made. The income or loss allocable to
Excess Aggregate Contributions is the
income or loss allocable to the Member's
After-Tax Employee Contributions (and
amounts contributed under the Plan that
are treated as Contribution Percentage
Amounts for purposes of the ACP test)
for the Plan Year multiplied by a
fraction, the numerator of which is such
Member's Excess Aggregate Contributions
for the year and the denominator of
which is the portion of the Member's
Account Balance attributable to
Contribution Percentage Amounts as of
the end of the Plan Year, without regard
to any income or loss occurring during
such Plan Year.
(iii) Excess Aggregate Contributions shall be
distributed under this Section 4.3.2(a)
on a pro-rata basis from the Member's
After-Tax Employee Contribution Account,
Qualified Nonelective Contribution
Account and Deferral Account.
(b) Alternative Correction Methods.
(i) The Employer may treat Deferred
Contributions as Contribution Percentage
Amounts for purposes of computing the
ACPs to the extent permitted under
Section 1.401(m)-1(b)(5) of the Treasury
Regulations.
(ii) The Employer may also make Qualified
Nonelective Contributions with respect
to Members who are Nonhighly Compensated
Employees and consider such
contributions as Contribution Percentage
Amounts for purposes of computing the
ACPs. Notwithstanding the foregoing,
Qualified Nonelective Contributions may
be included only if such Contributions
comply with the requirements set forth
in Treasury Regulation Section 1.401(m)-
1(b)(5).
(iii) (A) The Committee may prospectively
decrease a Member's authorized
reduction under Section 3.4, if the
Member is a Highly Compensated
Employee and that action is
necessary in order to satisfy the
Actual Contribution Percentage
test. The Committee shall first
decrease, to the extent necessary,
the authorized reductions of all
such Highly Compensated Employees
who authorized the largest
percentage reductions in their
Compensation, determined without
regard to this Section, until the
Compensation percentage reduction
for such Highly Compensated
Employees is equal to the next
largest Compensation percentage
reduction level authorized by
Highly Compensated Employees. If
the Committee determines that
further decreases are necessary, it
shall continue to decrease the
authorized reductions of Highly
Compensated Employees whose
authorized reductions in their
Compensation are then the largest,
until the Compensation percentage
reduction for such Highly
Compensated Employees is equal to
the next largest Compensation
percentage reduction level
authorized by Highly Compensated
Employees. The Committee shall
continue to make such decreases
until it determines that the Actual
Contribution Percentage tests in
Section 401(m) of the Code have
been met.
(B) If the Committee determines, in its
sole discretion, that it is no
longer necessary to decrease a
Highly Compensated Employee's
authorized Compensation reduction
under this Section, the Committee
shall, on a prospective basis,
increase the authorized Compen-
sation reductions of all Highly
Compensated Employees who had such
reductions decreased, until all
such Highly Compensated Employees
have their authorized Compensation
reductions restored to their
originally authorized level or to
the level at which the Committee
determines that the Actual
Contribution Percentage tests of
Section 401(m) of the Code will be
met, whichever occurs first.
(C) When increasing or decreasing any
Highly Compensated Employee's
authorized Compensation reduction
under this Section, the Committee
shall treat all Highly Compensated
Employees who authorized the same
reduction in their Compensation in
the same manner.
(iv) The Plan may use any other correction
method available under Section 401(m) of
the Code and the Treasury Regulations
thereunder.
(c) Any action taken by the Committee under this
Section may be taken without the consent of, or prior notice
to, the affected Highly Compensated Employees, but such
Highly Compensated Employees shall be promptly informed in
writing of the Committee's action.
(d) Definitions. For purposes of this Section,
(1) "Aggregate Limit" shall mean the sum of (i)
125 percent of the greater of the ADP of the
Nonhighly Compensated Employees for the Plan
Year or the ACP of Nonhighly Compensated
Employees for the Plan Year and (ii) the
lesser of 200% or two plus the lesser of such
ADP or ACP.
(2) "Actual Contribution Percentage (ACP)" means,
for a specified group of Members for a Plan
Year, the average (to the nearest hundredth
of a percentage point), of the ratios
calculated separately for each Member in such
group (to the nearest hundredth of a
percentage point), of (A) the Member's
Contribution Percentage Amounts for the Plan
Year to (B) the Member's Earnings for such
Plan Year (whether or not the Employee was a
Member for the entire Plan Year). For
purposes of computing ACPs, an Employee who
would be a Member but for the failure to make
After-Tax Employee Contributions shall be
treated as a Member on whose behalf no After-
Tax Employee Contributions are made.
(3) "Contribution Percentage Amounts" shall mean
the After-Tax Employee Contributions made
under the Plan on behalf of the Member for
the Plan Year. The Employer may include
Qualified Nonelective Contributions in the
Contribution Percentage Amounts. The
Employer also may elect to use Deferred
Contributions in the Contribution Percentage
Amounts so long as the ADP test is met before
the Deferred Contributions are used in the
ACP test and continues to be met following
the exclusion of those Deferred Contributions
that are used to meet the ACP test. Matching
Contributions made on behalf of the Member
under another plan maintained by the Employer
shall be taken into account to the extent
described in Section 4.3.1.
(4) "Deferred Contributions" shall mean a
Member's Savings Plus Contributions and Flex
Fund Elective Deferrals, collectively.
(5) "Excess Aggregate Contributions" shall mean
with respect to any Plan Year, the excess of:
(A) The aggregate Contribution Percentage
Amounts actually taken into account in
computing the ACP of Highly Compensated
Employees for such Plan Year, over
(B) The maximum Contribution Percentage
Amounts permitted by the ACP test
(determined by reducing contributions
made on behalf of Highly Compensated
Employees in order of the ACPs,
beginning with the highest of such
percentages).
(6) "Matching Contributions" shall have the
meaning set forth in Section
1.401(m)-1(f)(12) of the Treasury
Regulations.
4.4 Maximum Annual Additions. The total Annual
Additions to the Plan on behalf of any Member for any Limitation
Year shall not exceed the lesser of (a) $30,000 (or, if greater,
one fourth of the defined benefit dollar limitation set forth in
Section 415(b)(1)(A) of the Code as in effect for the Limitation
Year) or (b) 25% of the Member's total Earnings for such
Limitation Year.
4.4.1 Cost of Living Adjustments. The dollar and
percentage limitations set forth in Section 4.4 shall be
adjusted pursuant to regulations under Section 415 of the
Code, as may be amended from time to time.
4.4.2 Reduction of Annual Addition. (a) If a
Member's Annual Additions for any Plan Year would exceed the
limit set forth in Section 4.4, then first, the amount of
any After-Tax Employee Contributions shall be reduced, then
second, Savings Plus Contributions shall be reduced, third,
the amount of any Flex Fund Elective Deferrals shall be
reduced and fourth, the amount of any Employer Allocations
shall be reduced.
(b) If, notwithstanding subparagraph (a), a
contribution is made pursuant to Article III in excess of
the limitations set forth in Section 4.4 with respect to a
Member, then (i) the portion of such excess attributable to
After-Tax Employee Contributions and earnings thereon, if
any, shall be returned to such Member, (ii) the portion of
such excess attributable to Savings Plus Contributions or
Flex Fund Elective Deferrals and earnings thereon, if any,
shall be returned to such Member, and (iii) the portion of
such excess attributable to Employer Allocations, if any,
shall reduce the Employer's contributions for the next
Limitation Year (and succeeding Limitation Years, as
necessary) for that Member if such Member is covered by the
Plan as of the end of the Limitation Year. However, if such
Member is not covered by the Plan as of the end of the
Limitation Year, then the excess amounts shall be held
unallocated in a suspense account for the Limitation Year
and allocated and reallocated in the next Limitation Year to
all other Members in the Plan. Furthermore, the excess
contributions shall be used to reduce the Employer's
contributions for the next Limitation Year (and succeeding
Limitation Years, as necessary) for other Members in the
Plan. Excess amounts of Employer Allocations, if any (prior
to allocation or reallocation), shall not be distributed to
Members.
4.4.3 Additional Limitations. In the case of any
Member who also participates or has participated in any
qualified defined benefit plan maintained by the Employer,
the sum of the Defined Benefit Plan Fraction and the Defined
Contribution Plan Fraction for any Plan Year shall not
exceed 1.0.
4.4.4 Reduction of Annual Additions. In the
event the sum of the Defined Benefit Plan Fraction and the
Defined Contribution Plan Fraction exceeds 1.0 with respect
to a Member, then such Member's benefits under the qualified
defined benefit plan maintained by the Employer shall be
reduced so that the sum of the Defined Benefit Plan Fraction
and the Defined Contribution Plan Fraction does not exceed
1.0.
4.4.5 Code Section 415 Incorporated by Reference.
Notwithstanding anything else in the Plan to the contrary,
allocations of Annual Additions shall be limited in
accordance with Section 415 of the Code which is hereby
incorporated by reference into the Plan.
4.4.6 Definitions. (a) "Annual Additions" shall
mean, for each Limitation Year, the amount of Savings Plus
Contributions, Flex Fund Elective Deferrals, After-Tax
Employee Contributions, Employer Allocations, Qualified
Nonelective Contributions and Forfeitures allocated to the
accounts of a Member who is a Member of the Plan, if any,
for any Plan Year. Contributions do not fail to be Annual
Additions merely because they are Excess Deferrals, Excess
Contributions, or Excess Aggregate Contributions (as such
terms are defined in Sections 4.1, 4.2 and 4.3, respective-
ly) or merely because Excess Contributions or Excess Aggre-
gate Contributions are corrected through distribution or
recharacterization. Excess Deferrals that are distributed
in accordance with Section 4.1.1 are not Annual Additions.
Annual Additions shall also include amounts described in
Sections 415(1)(1) and 419A(d)(2) of the Code. Annual Addi-
tions shall not include any amounts described in Article XI.
(b) "Defined Benefit Plan Fraction" shall mean a
fraction the numerator of which is the aggregate of the
Member's Projected Annual Benefit under all qualified
defined benefit plans maintained by the Employer as of the
close of such Plan Year, and the denominator of which is the
lesser of (i) 1.25 multiplied by the dollar limit applicable
to such Plan Year, or (ii) 1.4 multiplied by the Employer's
average annual Earnings for the highest three consecutive
years.
(c) The term "Projected Annual Benefit" shall
mean the annual benefit to which such Member would be
entitled under the terms of such plan based on the assump-
tion that such Member will continue his employment and that
all other relevant factors used to determine benefits under
such plans will remain constant until such Member's
anticipated retirement.
(d) "Defined Contribution Plan Fraction" shall
mean a fraction the numerator of which is the sum of the
Annual Additions on behalf of the Member under a defined
contribution plan of an Employer during such Plan Year and
for all prior Plan Years, and the denominator of which is
the sum of the following amounts determined for such Plan
Year and each prior Plan Year: the lesser of (i) 1.25
multiplied by the maximum dollar amount allowable under
Section 415(c)(1)(A) of the Code for such Plan Year, or
(ii) 1.4 multiplied by 25% of the Member's Earnings in such
Plan Year.
(e) For purposes of this Section 4.4, "Employer"
shall have the same meaning as such term has for purposes of
the Period of Service for eligibility and vesting under
Section 1.20; provided, however, that such definition is
modified for purposes of this Section 4.4 in accordance with
Section 415(h) of the Code.
(f) "Limitation Year" shall mean the calendar
year.
4.5 Definition of Highly Compensated Employee.
(a) For purposes of this Plan, a "Highly Compensated Employee"
shall mean:
(i) Each Controlled Group Employee who at any
time during the Plan Year in which the determination is to
be made (the "Determination Year"):
(A) was a five percent owner of a Controlled
Group member;
(B) received Testing Compensation from Con-
trolled Group members in excess of
$75,000 (or such,higher adjusted amount
prescribed by the Secretary of the Trea-
sury);
(C) received Testing Compensation from Con-
trolled Group members in excess of
$50,000 (or such higher adjusted amount
prescribed by the Secretary of the Trea-
sury) and was among the Top-Paid Group
of Employees for the Plan Year; or
(D) was an officer of a Controlled Group
member and received Testing Compensation
in excess of 50% of the defined benefit
limitation for the Plan Year under Sec-
tion 415(b)(1)(A) of the Code.
(ii) For purposes of determining which officers
are Highly Compensated Employees under Subparagraph (i)(D)
above, the following rules shall apply:
(A) the number of officers shall not exceed
the lesser of
(I) 50 Controlled Group Employees, or
(II) the greater of (a) three Controlled
Group Employees or (b) 10% of the
Controlled Group Employees; and
(B) If no officer of a member of the Con-
trolled Group has satisfied the
compensation requirement described in
Subparagraph (i)(D) above for the
Determination Year, the highest paid of-
ficer who is a Controlled Group Employee
for any such Plan Year shall be treated
as described in such Subparagraph.
(iii) If a Controlled Group Employee is a Family
Member with a five percent owner of a member of the
Controlled Group or with a Highly Compensated Employee in
the group consisting of the 10 Highly Compensated Employees
paid the greatest amount of Testing Compensation during the
Determination Year, then, for purposes of this Section, such
Controlled Group Employee shall not be considered a
Controlled Group Employee and the Testing Compensation paid
to such Controlled Group Employee shall be deemed to have
been paid to the five percent owner or Highly Compensated
Employee to whom the Controlled Group Employee is so
related.
(iv) An individual who is no longer employed by a
Controlled Group member (or who is deemed, under Section
1.414(q)-1T, Q&A-5(a)(2) of the Treasury Regulations, to
have separated from service) shall be considered a Highly
Compensated Employee if such individual was a Highly
Compensated Employee either (A) when such individual
terminated employment with the Controlled Group or (B) at
any time after attaining age 55.
(b) The following definitions shall apply in deter-
mining who is a Highly Compensated Employee:
(i) "Top-Paid Group of Employees" shall mean the
group consisting of the top 20% of Controlled Group
Employees when ranked on the basis of Testing Compensation.
The determination of the Top-Paid Group of Employees shall
be made as of the last day of the Determination Year;
Controlled Group Employees who terminate employment and who
perform services for a Controlled Group member during the
Determination Year shall be included in the determination.
Except to the extent that the Committee elects to the
contrary as described below, the following Controlled Group
Employees shall not be considered in determining the number
(but not the identity) of Controlled Group Employees in the
Top-Paid Group of Employees:
(A) Controlled Group Employees who have not
completed 6 months of service with a Controlled Group
member;
(B) Controlled Group Employees who normally
work less than 17-1/2 hours per week;
(C) Controlled Group Employees who normally
do not work more than 6 months per calendar year;
(D) Controlled Group Employees who have not
attained age 21; and
(E) Controlled Group Employees who are non-
resident aliens and receive no earned income (within
the meaning of Section 911(d)(2) of the Code) from a
Controlled Group member from sources within the United
States (as defined in Section 861(a)(3) of the Code).
Notwithstanding the foregoing, the Committee may elect
to apply Subsections (A), (B), (C), or (D) by substituting a
shorter period of service, smaller number of hours or months, or
lower age for the period of service, number of hours or months,
or age (as the case may be) than that specified in such
Subsections.
(ii) "Controlled Group" means, collectively, the
aggregated group of Employers (as defined for purposes of
determining the Period of Service for eligibility and
vesting under Section 1.20).
(iii) "Controlled Group Employee" means an
individual (including a "leased employee," as defined in
Section 414(n) of the Code) employed by a member of the
Controlled Group.
(iv) "Testing Compensation" means wages, salaries
and other amounts received by or made available to a
Controlled Group Employee for services rendered to a
Controlled Group member, including deferred contributions
under a cash or deferred arrangement described in Section
401(k) of the Code.
(c) The status of an individual as a Highly Com-
pensated Employee shall be determined in accordance with Section
414(q) of the Code. The Plan is hereby incorporating by
reference the calendar year calculation election set forth in
Section 1.414(q)-1T of the Temporary Treasury Regulations.
4.6 Effective Date. The provisions of this Article
are effective as of January 1, 1987.
<PAGE>
ARTICLE V
ACCOUNTS AND VESTING
5.1 Personal Contributions Account. A Member's
Personal Contributions Account and earnings thereon shall at all
times be fully vested and nonforfeitable.
5.2 After-Tax Employee Contribution Account. A
Member's After-Tax Employee Contribution Account and earnings
thereon shall at all times be fully vested and nonforfeitable.
5.3 Savings Plus Account. A Member's Savings Plus
Account and earnings thereon shall at all times be fully vested
and nonforfeitable.
5.4 Flex Fund Elective Deferral Account. A Member's
Flex Fund Elective Deferral Account and earnings thereon shall at
all times be fully vested and nonforfeitable.
ASC Qualified Nonelective Contribution Account. A
Member's Qualified Nonelective Contribution Account and earnings
thereon shall at all times be fully vested and nonforfeitable.
5.6 Employer Allocation Account. Subject to Section
5.8, Employer Allocations made within the first three (3) year
Period of Service of a Member and earnings thereon shall become
fully vested and nonforfeitable upon completion of such three (3)
year Period of Service. Employer Allocations made after the
first three (3) year Period of Service of a Member and earnings
thereon shall at all times be fully vested and nonforfeitable.
5.7 Termination of Employment. A Member whose
employment terminates for any reason other than death, Disability
or Retirement shall be entitled to receive, as provided in
Section 6.1 of the Plan, only that portion of his Account Balance
which shall be vested pursuant to this Article V of the Plan at
the date of such termination.
A Member's Account Balance shall be fully vested and
nonforfeitable upon the Member's:
(i) termination of employment by reason of death
or Disability,
(ii) completion of a three (3) year Period of
Service, or
(iii) attainment of Normal Retirement Age.
5.8 Forfeitures. Upon a Member's incurrence of five
consecutive One Year Periods of Severance, that portion of his
Account Balance which shall not be vested at his termination of
employment shall be forfeited. Further, if the Member receives
his benefits upon his termination from employment in the form of
either a lump sum cash payment (described in Section 6.2(a)(i))
or in two installments (described in Section 6.2(a)(ii)), the
portion of the Member's Account Balance which was not vested at
his termination of employment shall become a Forfeiture on the
day after the distribution(s) of the vested portion of such
Member's Account Balance has been completed; provided, however,
that such Forfeitures shall be restored in accordance with the
repayment provisions set forth in Section 5.9(d). Units in the
Investment Options representing the value of the amount so
forfeited shall be redeemed as of the December 31 following the
Forfeiture and shall be used to reduce the Employer's contribu-
tions pursuant to Article III of the Plan.
If the value of a Member's Account Balance at the time
of such Member's termination of employment is zero, such Member
shall be deemed to have received a distribution of his vested
Account Balance. If such former Member returns to service prior
to incurring five (5) consecutive One Year Periods of Severance,
that portion of his Account Balance which was not vested shall,
upon his again becoming a Member, be recredited to such Member's
Investment Options.
5.9 Reemployment. (a) A Member who terminates
employment with the Employer and who subsequently is reemployed
by the Employer shall again become a Member of the Plan as of the
date of his reemployment. If such Member had terminated
employment with a vested interest in his Account Balance under
the Plan or is reemployed prior to incurring five consecutive One
Year Periods of Severance, all such Member's Period of Service
credit shall be taken into account, subject to paragraph (c)
below. Effective as of January 1, 1985, if a Member attains a
Severance from Service Date without a vested interest in his
Account Balance under the Plan, such Member's Period of Service
prior to such Member's incurrence of consecutive One Year Periods
of Severance may be disregarded for purposes of determining such
Member's vested interest in such Member's Employer Allocation Ac-
count after such Member's incurrence of consecutive One Year
Periods of Severance if such Member's consecutive One Year
Periods of Severance exceed the greater of (i) five (5) or
(ii) the Member's number of years in the Period of Service prior
to such consecutive One Year Periods of Severance.
(b) A Member's Period of Service following such
Member's incurrence of consecutive One Year Periods of Severance
may be disregarded for purposes of determining such Member's
vested interest in the allocations to such Member's Employer
Allocation Account prior to such Member's incurrence of
consecutive One Year Periods of Severance if the Member incurs at
least five (5) consecutive One Year Periods of Severance.
(c) If any Period of Service is not required to be
taken into account because of One Year Periods of Severance to
which this section applies, such Period of Service shall not be
taken into account in applying this paragraph to a subsequent
period of One Year Periods of Severance.
(d) A Member who previously forfeited the nonvested
portion of his Account Balance as a result of his receipt of the
distribution of the vested portion of his Account Balance in a
lump sum or in two installments at his previous termination of
employment and who returns to the employ of the Employer before
incurring five consecutive One Year Periods of Severance may have
such Forfeitures reinstated by repaying the amount of any distri-
bution made to him at the date of termination before the earlier
of (i) five (5) years after such Member is subsequently reemplo-
yed by the Employer and (ii) the date such Member incurs five (5)
consecutive One Year Periods of Severance following the date of
the distribution; the amount of such repayment, if any, and that
portion of such Member's Account Balance which was not vested
shall become the beginning balance in the Investment Options.
5.10 Accounts. (a) A Savings Plus Account shall be
established on behalf of each Member. Each Member's Savings Plus
Account shall be credited with Savings Plus Contributions and the
proportionate share of earnings (or loss) thereon pursuant to
Article VIII. The Committee, in its discretion, shall determine
in a nondiscriminatory manner the method of computing a Member's
proportionate share of the earnings of the Trust Fund. Each
Member's Account shall be charged with distributions made to the
Member or the Member's Beneficiary pursuant to Articles VI and
IX.
(b) A Flex Fund Elective Deferral Account shall be
established for each Member who makes the election set forth
under Section 3.2 of the Plan. Such Account shall be credited
with the Flex Fund Elective Deferral for such Member under
Section 3.2 and earnings (or loss) thereon, and charged with
distributions made pursuant to Section 6.1 and Article IX.
(c) An Employer Allocation Account shall be
established for each Member. Such Account shall be credited with
the Employer Allocations made to each such Member and earnings
(or loss) thereon, and shall be charged with distributions made
in accordance with Section 6.1 and Article IX. Prior to January
1, 1989, this Account was known as "Company Allocation Account."
(d) Effective January 1, 1991, an After-Tax Employee
Contribution Account shall be established on behalf of each
Member. Each Member's After-Tax Employee Contribution Account
shall be credited with After-Tax Employee Contributions and the
proportionate share of earnings (or loss) thereon pursuant to
Article VIII. The Committee, in its discretion, shall determine
in a nondiscriminatory manner the method of computing a Member's
proportionate share of the earnings of the Trust Fund. Each
Member's Account shall be charged with distributions made to the
Member or the Member's Beneficiary pursuant to Articles VI and
IX.
(e) A Personal Contribution Account has been
established for those Members who had made Personal
Contributions, or pursuant to Section 3.5 of the Plan as in
effect prior to the Restatement Date have been deemed to have
made Personal Contributions. Such Account shall be credited with
such Personal Contributions and earnings (or loss) thereon, and
shall be charged with distributions made pursuant to Section 6.1
and Article IX.
(f) A Qualified Nonelective Contribution Account shall
be established on behalf of Members in the event that Qualified
Nonelective Contributions are made pursuant to Section 3.6 of the
Plan.
5.11 Statement of Accounts. As soon as practicable
after the end of each quarter of a Plan Year, and at such other
times as the Committee in its discretion may determine, the
Committee shall distribute to each Member a statement showing the
Member's interest in the Trust Fund.
<PAGE>
ARTICLE VI
DISTRIBUTIONS
6.1 In General. (a) If a Member terminates
employment as a result of Retirement, Disability or death, such
Member (or the Beneficiary of such Member) shall receive a
distribution of the vested portion of his Account Balance in
either:
(i) a lump sum, pursuant to Section 6.2(a)(i),
(ii) in two installments, pursuant to Section
6.2(a)(ii), or
(iii) in annual installments, pursuant to Section
6.2(a)(iii).
(b) Subject to clause 6.2(e) below, a Member shall
receive the vested portion of his Account Balance in a lump sum
payment (in accordance with Section 6.2(a)(i)) upon such Member's
separation from service for reasons other than his Retirement,
Disability or death, provided that the Member consents in writing
to receive such immediate distribution of the vested portion of
his Account Balance in the manner described in Section 6.2(e).
(c) A Member may receive the vested portion of his
Account Balance in a lump sum payment (in accordance with Section
6.2(a)(i)) upon the termination of the Plan without the
establishment of a successor plan (as set forth in Section 6.4).
(d) A Member may withdraw all or a portion of his
Account Balance (i) upon his attainment of age 59-1/2 or (ii) as a
result of hardship (subject to and in accordance with Section
6.3).
(e) A Member may withdraw all or a portion of his
After-Tax Employee Contribution Account and Personal Contribution
Account at any time, subject to and in accordance with Section
6.5.
(f) To receive a distribution under this Article, a
claim must be filed by the Member (or, if applicable, his
Beneficiary), on a form and in the manner prescribed by the
Committee.
6.2 Methods of Distribution. (a) The following
methods of distribution are available under this Article VI:
(i) a lump sum payment equal to the vested
portion of a Member's Account Balance as of the Valuation
Date immediately following such Member's termination of
employment. Subject to the provisions of paragraph (d) of
this Section and Article IX, if applicable, such payment
shall be made as soon as practicable following the Valuation
Date immediately following the Member's termination of
employment, but in no event later than 60 days after the
close of the Plan Year in which the Member's termination of
employment occurred. Further, the Member shall generally
receive the amounts credited to his Account Balance for such
Plan Year following his termination of employment (such as,
for example, Employer Allocations for such Plan Year) no
later than 60 days after the close of such Plan Year.
(ii) Two installments. Subject to the provisions
of paragraph (d) of this Section and Article IX, if
applicable, the first such installment, which shall be equal
to one half of such Member's Account Balance as of the
Valuation Date immediately following the Member's
Retirement, death or Disability, shall be paid to such
Member as soon as practicable after such Valuation Date.
The second installment, which shall include the total
amounts remaining in the Member's Account Balance as of the
last Valuation Date of the Plan Year of the Member's
Retirement, death or Disability, shall be paid within 60
days after the close of the Plan Year in which the Member's
Retirement, death or Disability occurred. If such Member
dies prior to receiving his second installment, his
Beneficiary will receive such installment. Where the
Member's Account Balance under the Plan is payable in two
installments hereunder, the balance of the Account Balance
not yet distributed shall, if not already in the Money
Market Investment Option (for periods prior to April 1,
1995, the Savings Fund), be transferred to and invested in
the Money Market Investment Option (for periods prior to
April 1, 1995, the Savings Fund) under Article VIII, and
shall share in any increases or decreases in such Fund in
accordance with Section 8.2 until it is fully distributed to
the Member or his Beneficiary.
(iii) In annual cash installments over a designated
period of up to five (5) years. Subject to the provisions
of paragraph (d) of this Section and Article IX, if
applicable, the first such installment shall be made as soon
as practicable after the Valuation Date immediately
following the Member's Retirement, death or Disability and
shall be based on the value of the Member's Account Balance
as of such Valuation Date. The second such installment
shall be made within 60 days after the close of the Plan
Year in which the Member's Retirement, death or Disability
occurred. Such second installment shall be based on the
value of the Member's Account Balance as of the last
Valuation Date of the Plan Year of the Member's Retirement,
death or Disability and shall include the Employer
Allocation for such Plan Year. Succeeding installments
shall be made annually on or about the anniversary of the
second installment and shall be based on the value of the
Member's Account Balance as of the Valuation Date
immediately preceding such installment. The amount of each
annual installment payment shall equal the Member's Account
Balance as of the applicable Valuation Date multiplied by a
fraction, the numerator of which is one and the denominator
of which is the number of remaining installments due
(including the installment in question). Where the Member's
Account Balance under the Plan is payable in installments
hereunder, the balance of the Account Balance not yet
distributed shall, if not already in the Money Market
Investment Option (for periods prior to April 1, 1995, the
Savings Fund), be transferred to and invested in the Money
Market Investment Option (for periods prior to April 1,
1995, the Savings Fund) under Article VIII, and shall share
in any increases or decreases in such Fund in accordance
with Section 8.2 until it is fully distributed to the Member
or his Beneficiary.
(iv) Notwithstanding subparagraphs (ii) and (iii)
of this Section 6.2(a), if the value of the Account Balance
of a Member who ceases to be an Employee does not exceed
$3,500 at any time, such Member shall receive a distribution
of his Account Balance in a lump sum payment in accordance
with subparagraph (i) of this paragraph (a). Such
distribution shall be made as soon as practicable following
the Valuation Date immediately following the Member's
termination of employment, but in no event later than 60
days after the close of the Plan Year in which the Member's
termination of employment occurred.
(v) A Member, who upon his attainment of age 59-1/2,
his Retirement, Severance from Service Date or death is to
receive his Account Balance under the Plan in a lump sum
payment, may elect (or, if the Member has died, his
Beneficiary may elect), on a form prescribed by the
Committee, to have the portion of his Account Balance which
is invested in the Republic New York Corporation Common
Stock Investment Option (which was referred to as the
"Republic New York Corporation Common Stock Fund" prior to
April 1, 1995) distributed under this Article VI either in
the form of Republic New York Corporation Common Stock or in
cash. An election to receive distributions in the form of
Republic New York Corporation Common Stock shall be
irrevocable after such election is received by the
Committee. All other distributions under the Plan,
including in service distributions described in Section 6.3
(other than in service distributions after the Member's
attainment of age 59-1/2), from the portion of a Member's
Account Balance which is invested in the Republic New York
Corporation Common Stock Investment Option shall be paid in
the form of cash, but not in stock. Further, fractional
shares of Republic New York Corporation Common Stock shall
under all circumstances be distributed in cash.
(b) If a Member dies while he is an Employee, dies
after his Retirement or Disability but before receiving any
payments hereunder, or dies while receiving installment payments
under paragraph (a)(iii) of this Section, the Member's
Beneficiary shall be entitled to receive a distribution of the
Member's entire Account Balance. Such distribution shall,
subject to Section 9.2, be made to the Beneficiary, at the
Beneficiary's election, either in the form of a lump sum payment
under Section 6.2(a)(i) or in the form of annual cash
installments under Section 6.2(a)(iii). Such payment or payments
shall be equal to the value of the Member's Account Balance
determined as of the Valuation Date immediately following the
date of the Member's death. Such payment shall be made or
commence as soon as practicable following such Valuation Date,
but in no event later than 60 days after the close of the Plan
Year in which the Member's death occurred.
(c) The Committee shall advise the Member who
terminates employment as a result of Retirement or Disability (or
the Beneficiary, in the event of the Member's death) of the
payment options available under the Plan. The Member (or the
Beneficiary) shall instruct the Committee in writing whether
payment is to be made in a lump sum or in installments prior to
the commencement of benefit payments. An election may be revoked
and a new election may be filed in writing with the Committee at
any time prior to the commencement of benefits. In addition, the
installment form of payment set forth in Section 6.2(a)(iii) may
be changed by the Member or, if applicable, his Beneficiary, to
the lump sum form of payment set forth in Section 6.2(a)(i) at
any time by filing such request in writing with the Committee;
such lump sum payment shall be made as soon as practicable after
the Valuation Date immediately following the date of such request
and shall be equal to the Member's Account Balance as of such
Valuation Date.
(d) A Member who ceases to be an Employee due to his
Retirement or Disability shall be entitled to defer receipt of
any distribution under this Section 6.2 until such Member elects
to receive such distribution; provided, however, that, subject to
Section 9.1, such distribution must be made or commence not later
than April 1 of the calendar year following the calendar year in
which such Member attains the age of 70-1/2. If the Member elects
to defer the receipt of distributions in accordance with this
Section 6.2(d), the portion of the Member's Account Balance that
is not invested in the Money Market Investment Option (for
periods prior to April 1, 1995, the Savings Fund) as of such
Member's termination of employment shall be transferred and
invested in the Money Market Investment Option (for periods prior
to April 1, 1995, the Savings Fund). The amount of the
distribution deferred under this paragraph shall be based on the
value of the Member's Account Balance determined as of the
Valuation Date immediately preceding the date of such payment.
Payment shall be made as soon as practicable following the date
as of which the Member elects to receive the distribution but,
subject to Section 9.1, in no event later than the April 1 of the
calendar year following the calendar year in which such Member
attains the age of 70-1/2.
(e) Notwithstanding the foregoing, subject to Section
6.3(e), if the present value (as determined under Section
411(a)(11) of the Code) of the Account Balance of a Member who
ceases to be an Employee exceeds $3,500 at any time, such Member
shall receive (or, if applicable, commence to receive) a
distribution of his Account Balance within 60 days after the
close of the Plan Year in which the Member attains his Normal
Retirement Age unless such Member consents in writing, during the
90 day period ending on the date his distribution from the Plan
is scheduled to be received (or, if applicable, commence to be
received), to receive such Account Balance upon his termination
of employment. If a Member who terminates employment for reasons
other than Retirement, Disability or death does not elect to
receive an immediate distribution of the vested portion of his
Account Balance, the portion of the Member's Account Balance that
is not invested in the Money Market Investment Option (for
periods prior to April 1, 1995, the Savings Fund) as of such
Member's termination of employment shall be transferred and
invested in the Money Market Investment Option (for periods prior
to April 1, 1995, the Savings Fund). The amount of the
distribution deferred under this paragraph shall be based on the
value of the Member's Account Balance determined as of the
Valuation Date immediately preceding the date of such payment.
The Committee shall notify the Member of the right to
defer any distribution until the Member attains Normal Retirement
Age. Such notification shall include a general description of
the material features, and an explanation of the relative values
of, the optional forms of benefit available under the Plan in a
manner that would satisfy the notice requirements of Section
417(a)(3) of the Code, and shall be provided no less than 30 days
and no more than 90 days prior to the date the Member is to
commence receiving distributions from the Plan. However,
distributions may commence less than 30 days after the notice
described in the preceding sentence is given if the Committee
clearly informs the Member that the Member has a right to a
period of at least 30 days after receiving the notice to consider
the decision of whether or not to elect a distribution, and the
Member, after receiving the notice, affirmatively elects a
distribution.
Notwithstanding the foregoing, the consent of the
Member shall not be required to the extent that a distribution is
required to satisfy Section 401(a)(9) or Section 415 of the Code.
In addition, upon termination of this Plan without the
"establishment of a successor plan," as described in Section 6.4,
the Member's Account Balance will, without the Member's consent,
be distributed to the Member. However, if there is an
"establishment of a successor plan," then the Account Balance
will be transferred, without the Member's consent, to the other
plan if the Member does not consent to an immediate distribution.
(f) Contributions made to the Plan on behalf of a
Member for the Plan Year in which such Member's employment
terminated because of death, Disability or Retirement shall be
paid as soon as practicable (or, if applicable, included in the
remaining installments that are payable to the Member) after the
amount thereof has been determined.
6.3 Hardship and Other In Service Distributions. (a)
Subject to the limitations set forth in subparagraph (b) herein-
below, effective January 1, 1990, a Member may withdraw on
account of hardship a cash amount equal to all or a specified
portion of the Member's Flex Fund Elective Deferrals and Savings
Plus Contributions (collectively, the "Deferred Contributions")
under the Plan as of the most recent Valuation Date preceding the
Member's hardship withdrawal request, but not the post-1988
earnings on such amounts. In addition, a Member may withdraw on
account of hardship all or a specified portion of the value of
such Member's vested interest in his Employer Allocation Account,
including earnings thereon, and amounts attributable to
(including earnings on) rollovers and transfers under Article XI
as of the most recent Valuation Date preceding the Member's
hardship withdrawal request. For the purposes of this Section,
hardship is defined as an immediate and heavy financial need of
the Member where such Member lacks other available resources.
The following are the only financial needs considered
immediate and heavy:
(1) expenses for medical care described in Section
213(d) of the Code previously incurred by the
Member, the Member's spouse, or any Dependents of
the Member or necessary for these persons to
obtain medical care described in Section 213(d) of
the Code;
(2) costs directly related to the purchase of a
principal residence for the Member (excluding
mortgage payments);
(3) payment of tuition and related educational fees
for the next 12 months of post-secondary education
for the Member, the Member's spouse, children or
Dependents;
(4) payments necessary to prevent the eviction of the
Member from such Member's principal residence, or
foreclosure on the mortgage of the Member's
principal residence; or
(5) the need to pay funeral expenses of the Member's
spouse or the Member's lineal ascendants or
descendants and the spouses of such lineal
ascendants or descendants.
For purposes of this Section, "Dependent" shall mean
any of the following individuals over half of whose support, for
the Plan Year, was received from the Member (or is treated under
Section 152(c) or (e) of the Code as received from the Member):
(i) A son or daughter of the Member, or a
descendant of either,
(ii) A stepson or stepdaughter of the Member,
(iii) A brother, sister, stepbrother, or stepsister
of the Member,
(iv) The father or mother of the Member, or an
ancestor of either,
(v) A stepfather or stepmother of the Member,
(vi) A son or daughter of a brother or sister of
the Member,
(vii) A brother or sister of the father or mother
of the Member,
(viii) A son-in-law, daughter-in-law, father-in-law,
mother-in-law, brother-in-law, or sister-in-law of the
Member, or
(ix) An individual (other than an individual who
at any time during the taxable year was the spouse of the
Member) who, for the taxable year of the Member, has as his
principal place of abode the home of the Member and is a
member of the Member's household.
(b) A distribution will be considered as necessary to
satisfy an immediate and heavy financial need of the Member only
if:
(1) The Member has obtained all distributions, other
than hardship distributions, and all nontaxable
(at the time of the loan) loans currently
available under all plans maintained by the
Employer;
(2) The Employee is prohibited, under the terms of the
Plan or an otherwise legally enforceable agree-
ment, from making elective deferrals and employee
contributions to the Plan and all other plans
maintained by the Employer for at least 12 months
after receipt of the hardship distribution. For
this purpose, the phrase "all other plans main-
tained by the Employer" means all qualified and
nonqualified plans of deferred compensation
maintained by the Employer, including a cash or
deferred arrangement that is part of a cafeteria
plan within the meaning of Section 125 of the Code
and such other plans included in such phrase under
Section 1.401(k)-1(d)(2)(iv)(B)(4) of the Treasury
Regulations;
(3) The distribution is not in excess of the amount of
an immediate and heavy financial need of the
Member. The amount of the immediate and heavy
financial need may include any amounts necessary
to pay any federal, state or local income taxes or
penalties reasonably anticipated to result from
the distribution; and
(4) The Plan and all other plans maintained by the
Employer limit the Member's elective deferrals for
the next taxable year to the applicable limit
under Section 402(g) of the Code for such taxable
year minus the amount of such Member's elective
deferrals for the taxable year of the hardship
distribution.
In accordance with the rules set forth in clauses (2)
and (4) of this Section 6.3(b), a Member who receives a hardship
distribution:
(i) will not have Savings Plus Contributions or
Flex Fund Elective Deferrals made to the Plan on his behalf
and may not make After-Tax Employee Contributions to the
Plan for the twelve month period after his receipt of a
hardship distribution, and
(ii) the Member shall not have Savings Plus
Contributions or Flex Fund Elective Deferrals made on his
behalf for the taxable year immediately following the
taxable year of the hardship distribution in excess of the
applicable limit under Section 402(g) of the Code for such
taxable year less the amount of such Member's Savings Plus
Contributions for the taxable year of the hardship
distribution.
Notwithstanding anything else in the Plan to the
contrary, if a Member's Savings Plus Contributions and After-Tax
Employee Contributions are suspended in accordance with the
preceding paragraph, such Member may apply in writing, during an
annual open enrollment period, to have the Employer reduce his
Compensation and to resume making Savings Plus Contributions and
After-Tax Employee Contributions on his behalf to the Plan
commencing as of a payroll period immediately following the date
the twelve month suspension period ends. Savings Plus
Contributions and After-Tax Employee Contributions that are
suspended in accordance with the previous paragraph may not be
made up.
Notwithstanding the foregoing provisions in this
Section 6.3, if a Member requests a hardship withdrawal under
this Section 6.3, such Member shall first receive an immediate
distribution of the amount requested, to the extent available,
from such Member's Personal Contribution Account and After-Tax
Employee Contribution Account in accordance with Section 6.5.
For purposes of this paragraph (b), "Employer" shall
have a meaning set forth in Section 1.20 of the Plan for purposes
of determining the Period of Service for eligibility and vesting.
(c) A Member's request for a distribution on account
of hardship shall be made in writing on such form and in such
manner as determined by the Committee. Such written request
shall contain statements setting forth the nature of the
hardship, the total amount to be distributed, and the total
amount of the Member's actual expense incurred or to be incurred
on account of such hardship. A distribution based upon financial
hardship will not exceed the amount required to meet the
immediate financial need created by the hardship and not
reasonably available from other resources of the Member. Subject
to subsections (a) and (b) of this Section 6.3, the determination
of the existence of financial hardship and the amount required to
be distributed to meet the need created by the hardship shall be
determined by the Committee on a uniform and nondiscriminatory
basis in accordance with Regulations issued by the Secretary of
the Treasury.
(d) Hardship withdrawals made during 1989 shall be
subject to the hardship withdrawal provisions in effect under the
Plan prior to the Restatement Date.
(e) A Member may withdraw all or a portion of his
vested interest in his Account Balance upon such Member's
attainment of age 59-1/2. A Member's request for distribution under
this paragraph shall be made in writing on such form and in such
manner as determined by the Committee. A distribution under this
subsection (e) shall be made as soon as practicable after the
Valuation Date immediately following the date the Member's
request for distribution is received by the Committee.
(f) Withdrawals under this Section 6.3 shall be made
from the Member's Accounts in the following order of priority:
(i) Personal Contribution Account,
(ii) After-Tax Employee Contributions Account,
(iii) Rollover Contributions and transfers (plus
earnings thereon), under Article XII,
(iv) Savings Plus Account,
(v) Flex Fund Elective Deferral Account,
(vi) Qualified Nonelective Contribution Account,
and
(vii) Employer Allocation Account.
In addition, such withdrawals shall be accomplished through the
redemption of the Member's units in the Investment Options in
proportion to the value of his respective units then in such
Funds, and any portion of such vested interest which shall not
have been so paid or delivered shall continue to be held for his
benefit in such Funds. Withdrawals under this Section 6.3 may be
made no more often than once each quarter.
6.4 Distribution Upon Plan Termination. Upon the
termination of this Plan without the "establishment of a
successor plan," a Member's interest in the Trust Fund,
determined as of the Valuation Date coincident with or next
following such termination of the Plan, shall be distributed to
the Member or his Beneficiary in the manner described in Section
6.1. For purposes of this Section, the "establishment of a
successor plan" means the maintenance by the Employer of another
defined contribution plan (other than an employee stock ownership
plan as defined in Section 4975(e)-(7) or 409 of the Code or a
simplified employee pension as defined in Section 408(k) of the
Code) at any time during the period commencing on the date this
Plan is terminated and ending twelve months after the
distribution of all assets under this Plan. Notwithstanding the
foregoing, if fewer than two percent of the Employees who are
eligible under the Plan at the time of its termination are or
were eligible under another defined contribution plan at any time
during the 24 month period beginning 12 months before the time of
the termination, the other plan is not a successor plan.
6.5 Withdrawal of Personal Contributions and After-Tax
Employee Contributions. Upon written notice (which notice shall
be irrevocable) to the Committee, on such form as may be
prescribed by the Committee, each Member who has made Personal
Contributions and/or After-Tax Employee Contributions (or been
deemed to have made Personal Contributions pursuant to Section
3.4 of Article II of the Plan as in effect prior to the
Restatement Date) shall be entitled to withdraw in cash, not more
often than once during each calendar quarter:
(a) the amount of such contributions (or the value
thereof, if less), or a portion not exceeding such
value, as of the Valuation Date immediately
preceding the date of the withdrawal; and
(b) if such Member has withdrawn the full amount
permissible under clause (a) above, an amount
equal to the amounts attributable to such
contributions, determined as of the Valuation Date
immediately preceding the date of the withdrawal.
Withdrawals under this Section shall be made from amounts
credited to such Member's Investment Options attributable to such
Member's Personal Contributions and/or After-Tax Employee
Contributions, on a pro rata basis.
Withdrawals under this Section 6.5 shall be made from
the Member's Accounts in the following order of priority:
(i) Personal Contribution Account, and
(ii) After-Tax Employee Contribution Account.
<PAGE>
ARTICLE VII
TOP-HEAVY PROVISIONS
The following provisions (which are intended to comply
with Section 416 of the Code) shall become effective as of the
first day of any Plan Year in which the Plan is determined to be
Top-Heavy:
7.1 Definition of Top-Heavy. The Plan will be
considered to be Top-Heavy for a Plan Year if, as of the last day
of the preceding Plan Year (hereinafter referred to as the
"Determination Date"):
(a) the aggregate value of the Account Balances of all
Key Employees (as defined in Section 7.2) exceeds sixty percent
(60 per cent) of the value of all Account Balances of all Members (this
ratio is the "Top-Heavy Ratio"), or
(b) the Plan is part of a required aggregation group
of plans and the required aggregation group is Top-Heavy. The
term "required aggregation group" shall mean (1) each plan of an
Employer which qualifies under Section 401(a) of the Code in
which at least one Key Employee is a Member, and (2) any other
plan which enables a plan described in the preceding subsection
(1) to meet the requirements of Section 401(a)(4) or 410 of the
Code. An Employer may treat a plan not required to be included
in the required aggregation group as being part of such group if
such group would continue to meet the requirements of Sections
401(a)(4) and 410 of the Code with such plan being taken into
account ("Permissive Aggregation").
(c) If a Member who was formerly a Key Employee is not
a Key Employee on the Determination Date, then the Account
Balance of such Member shall not be included in the calculation
under subparagraph (a) above.
(d) The Account Balance of any Member who has not
performed services for the Employer at any time during the 5-year
period ending on the Determination Date shall be disregarded.
(e) The aggregate Account Balances under Section
7.1(a) shall include (a) nondeductible employee contributions,
including Personal Contributions, and (b) distributions made from
the Plan during the five-year period ending on the date on which
such determination is made. Contributions of an Employer under
the Social Security Act, or any other federal or state law, may
not be taken into account.
(f) If an Employer maintains or has maintained a
defined benefit plan which has covered or could cover a Member in
this Plan, the Top-Heavy percentage shall be determined by
applying a fraction, the numerator of which is the sum of the
Account Balances of all Key Employees under this Plan and the
present value of the accrued benefits of all Key Employees under
the defined benefit plan, and the denominator of which is the sum
of the account balances of all Members under this Plan and the
present value of the accrued benefits of all members under the
defined benefit plan. For purposes of this paragraph, the
aggregate value of the Account Balances and the present value of
the accrued benefits shall be calculated with reference to
Determination Dates which occur within the same calendar year.
The provisions of subparagraphs (a) through (d) above shall apply
in constructing such fraction.
If the plans are determined to be Top-Heavy, an
Employer shall be required to provide to each Non-key Employee
participating in both the defined benefit plan and the defined
contribution plan, a minimum contribution under the Plan equal to
at least seven and one-half percent (7-1/2) of the total annual
Earnings of each Member who is a Non-key Employee or, if less,
the highest rate allocated to any Key Employee who is in the
employ of the Employer on the last day of the Plan Year. Not-
withstanding the foregoing, if an Employee is a Non-key Employee
and is employed by the Employer as of the last day of a Plan
Year, and if such Employee does not participate in a defined
benefit plan maintained by an Employer, the Employer shall make a
contribution under this Plan on behalf of such Employee for such
Plan Year in the amount required to satisfy the provisions of
Section 416(c) of the Code. Amounts contributed as Savings Plus
Contributions and Deferred Cash Allocations hereunder shall be
taken into account for purposes of this paragraph. This
paragraph shall not apply for any Plan Year in which the Plan is
not a Top-Heavy Plan.
7.2 Definition of Key Employee and Non-Key Employee.
A Member will be considered to be a Key Employee if at any time
during the current Plan Year or any of the four preceding Plan
Years he is:
(a) an officer of an Employer whose total annual
Earnings exceeds one hundred fifty percent (150 per cent) of the dollar
amount described in Section 415(c)(1)(A) of the Code; provided,
however, that no more than fifty (50) Employees (or, if less, the
greater of three (3) or ten percent (10 per cent) of all Employees) shall
be considered as officers;
(b) one of the ten (10) Employees owning (or
considered as owning within the meaning of Section 318 of the
Code) (i) at least a one-half (one-half) percent interest and (ii) the
largest interests in an Employer if such Employee's annual
Earnings exceeds the limitation described in Section 415(c)(1)(A)
of the Code;
(c) a person who owns (or is considered as owning
within the meaning of Section 318 of the Code) more than five
percent (5%) of the outstanding stock of an Employer or stock
possessing more than five percent (5%) of the total combined
voting power of all stock of an Employer; and
(d) a person whose total annual Earnings from an
Employer is more than one hundred fifty thousand dollars
($150,000) and who owns (or is considered as owning within the
meaning of Section 318 of the Code) more than one percent (1 per cent) of
the outstanding stock of an Employer or stock possessing more
than one percent (1 per cent) of the total combined voting power of all
stock of an Employer.
A "Non-key Employee" is an Employee who is not a Key
Employee.
7.3 Reduced Limitation. If, in applying Section 7.1,
the Plan would be Top-Heavy if "90 per cent" were substituted for "60 per cent"
in subparagraph (a) of Section 7.1, then "1.00" shall be
substituted for "1.25" in Section 4.4.6 of the Plan.
<PAGE>
ARTICLE VIII
INVESTMENTS
8.1 Investment Elections. (a) Prior to first
becoming a Member, an Employee shall direct (and during any
subsequent election period described in Section 8.1(d), such
Member may direct), in the form and manner prescribed by the
Committee, that such Member's Savings Plus Contributions,
Deferred Cash Allocations, Employer Allocations, After-Tax
Employee Contributions, Qualified Nonelective Contributions and
rollovers and transfers to the Plan (pursuant to Article XII), if
any, be applied in such proportions as he may designate, to the
purchase for him of:
(I) Effective April 1, 1995:
(1) units in the Money Market Investment Option;
(2) units in the U.S. Fixed Income Short to
Intermediate Investment Option;
(3) units in the U.S. Fixed Income Long-Term
Investment Option;
(4) units in the U.S. Equity Large Cap Value
Investment Option;
(5) units in the U.S. Equity Large Cap Growth
Investment Option;
(6) units in the International Equity Investment
Option;
(7) units in the U.S. Equity Small Cap Investment
Option; and
(8) units in the Republic New York Corporation
Common Stock Investment Option.
(II) Effective for periods prior to April 1, 1995:
(1) units in the Fixed Income Fund;
(2) units in the Common Stock Fund;
(3) units in the Savings Fund;
(4) units in the Aggressive Growth Fund;
(5) units in the Managed Total Return Fund; or
(6) effective as of January 1, 1991, units in the
Republic New York Corporation Common Stock
Fund (this Fund was renamed the Republic New
York Corporation Common Stock Investment
Option as of April 1, 1995).
Notwithstanding anything else in the Plan to the
contrary, the following rules shall apply with respect to
investments in the Republic New York Corporation Common Stock
Investment Option:
(i) Only up to 50 per cent of a Member's Account Balance
may be invested in the Republic New York Corporation Common
Stock Investment Option; provided, however, that if the
value of the Member's investment in the Republic New York
Corporation Common Stock Investment Option exceeds 50 per cent of
the Member's Account Balance as a result of an event other
than either an investment election of such Member under this
Section or a transfer of assets by the Member to the
Republic New York Corporation Common Stock Investment
Option, such Member shall not be required to transfer such
excess amounts from the Republic New York Corporation Common
Stock Investment Option to another Investment Option in
order to reduce the Member's Account Balance invested in the
Republic New York Corporation Common Stock Investment Option
to 50% of the Member's Account Balance. Notwithstanding the
foregoing, a Member's previous valid election to invest in
the Republic New York Corporation Common Stock Investment
Option shall remain in effect with respect to all subsequent
contributions on behalf of the Member under the Plan (even
if more than 50% of the Member's Account Balance is invested
in the Republic New York Corporation Common Stock Investment
Option prior to such subsequent contribution) until the
Member makes a new investment direction in accordance with
Section 8.1(d) of the Plan.
(ii) For the 1991 Plan Year, only Employer
Allocations and Qualified Nonelective Contributions may be
invested in the Republic New York Corporation Common Stock
Fund. For Plan Years after 1991, subject to the approval of
the Securities and Exchange Commission and other applicable
regulatory agencies, the restriction set forth in this
clause (ii) shall no longer be applicable.
(b) Subject to Section 8.1(a)(ii) (as such Section
applies to the 1991 Plan Year), any amounts to be applied at any
time for any Member to the purchase of units in any of the
Investment Options shall be applied in the same proportions with
respect to such Member's Savings Plus Contributions, Flex Fund
Elective Deferrals, Employer Allocations, After-Tax Employee
Contributions, Qualified Nonelective Contributions, and rollovers
and transfers to the Plan, if any, and in multiples of 10 per cent.
(c) If a Member shall fail to make an investment
election (or if the Member's investment election is or becomes
invalid), then the portion of such Member's Savings Plus
Contributions, Flex Fund Elective Deferrals, Employer
Allocations, After-Tax Employee Contributions, Qualified
Nonelective Contributions and rollovers and transfers to the Plan
for which the Member has not made a valid investment election
pursuant to this Section 8.1 shall be applied to the purchase for
him of units in the Money Market Investment Option (for periods
prior to April 1, 1995, the Savings Fund).
(d) Subject to the foregoing provisions of this
Section and to Section 8.6, a Member's investment directions
shall remain in effect with respect to all subsequent Savings
Plus Contributions, Flex Fund Elective Deferrals, After-Tax
Employee Contributions, Qualified Nonelective Contributions, and
rollovers and transfers unless the Member makes a new investment
direction pursuant to Section 8.1(a) of the Plan. Any such new
investment election shall be made no later than the first Monday
of the third month of a calendar quarter and, subject to this
8.1(d), shall go into effect on the immediately following
January 1, April 1, July 1 or October 1. Any election made after
the first Monday of the third month of a calendar quarter shall
be treated as a timely election made during the next calendar
quarter. Notwithstanding the foregoing, for Plan Years prior to
1992, a Member may change his investment elections under this
Section 8.1(d) only during the spring or fall election period of
a Plan Year to go into effect as of the immediately following
July 1 or January 1. Notwithstanding the foregoing, with respect
to a change of election for future contributions to a Member's
Account, contributions made during the calendar quarter for which
such change in election first becomes effective will initially be
invested in money market mutual funds and will not be invested in
the Investment Option elected by the Member and in effect as of
the first day of the calendar quarter until the first business
day of the following calendar quarter; provided, however, that
amounts elected to be invested in the Republic New York
Corporation Common Stock Investment Option as in effect as of the
first day of the calendar quarter shall, subject to the
availability of funds and to the regulations issued by the
Securities and Exchange Commission, be invested in such
Investment Option during the period commencing on the first
business day of the following calendar quarter through the
fifteenth business day of such calendar quarter.
8.2 Valuation of Investment Units. Initially, the
value of each unit in each of the Investment Options shall be
$1.00, and one unit in any such Option shall be credited to each
Member for each $1.00 applied to the purchase for such units in
such Investment Option elected by the Member pursuant to Section
8.1 of the Plan. Thereafter, the Committee shall determine the
value of units in each Investment Option as of each Valuation
Date by dividing the fair market value of all property in each
such Investment Option as of such Valuation Date (after deducting
any expenses or other amounts then properly chargeable against
the particular Option) by the number of units then outstanding to
the credit of all Members in each such Investment Option.
8.3 Investment Option Transfers. Subject to Section
8.1(a)(ii) (as such Section applies to the 1991 Plan Year), a
Member may elect, at any time on or prior to the first Monday of
the third month of a calendar quarter, in the form and manner
prescribed by the Committee, to have the proceeds from the
redemption of multiples of 10% of the units from such Member's
Savings Plus Contributions, Flex Fund Elective Deferrals, After-
Tax Employee Contributions, Employer Allocations, Qualified
Nonelective Contributions, Personal Contributions and rollovers
and transfers to the Plan in an Investment Option as of the
immediately following March, June, September or December
Valuation Date, as the case may be, applied to the purchase for
such Member of units in any or all of the other Investment
Options. Such redemptions and purchases shall be effected as of
the immediately following March, June, September or December
Valuation Date of such Plan Year, as the case may be, and units
redeemed and purchases shall have the value determined therefor
as of such date; provided, however, that if a Member elects to
have amounts transferred to the Republic New York Corporation
Common Stock Investment Option from another Investment Option,
the Republic New York Corporation Common Stock shall, subject to
the availability of funds and to the regulations issued by the
Securities and Exchange Commission, be purchased for the Member's
Accounts within 15 business days of the Valuation Date as of
which the Member's election becomes effective. Notwithstanding
the foregoing, for Plan Years prior to 1992, a Member may elect
to make an Investment Option transfer under this Section 8.3 only
during the spring or fall election period of a Plan Year to go
into effect as of the immediately following June or December
Valuation Date. Further, for the 1991 Plan Year only, amounts
may not be transferred to the Republic New York Corporation
Common Stock Investment Option from any of the other Investment
Options set forth in Section 8.1, to the extent that such amounts
are not attributable to Employer Allocations and Qualified
Nonelective Contributions.
8.4 Fractional Investment Units. Fractions of units,
as well as whole units, in an Investment Option may be redeemed
or purchased for the credit of Members.
8.5 Additional Dates for Investment Election. The
Committee may, in its discretion, prescribe additional dates on
which a Member's investment directions may be changed or on which
Member's units in each Investment Option may be redeemed and the
proceeds used to purchase units in the other such Investment
Options.
8.6 Special Investment Rules for the April 1, 1995
Calendar Quarter. Notwithstanding the foregoing, the following
special rules apply with respect to the election of Investment
Options solely for the calendar quarter commencing April 1, 1995
(the date the investment options under the Plan were changed, as
described in Section 8.1(a)):
(i) Members shall elect to make changes with
respect to the Investment Options in their Account Balances
as of March 31, 1995 to the new Investment Options that are
effective as of April 1, 1995 and make Investment Option
elections with respect to contributions to the Plan for the
calendar quarter commencing April 1, 1995, by March 6, 1995.
(ii) If the Member does not make a valid election
regarding Investment Options by March 6, 1995, the Member's
Account Balance shall be transferred to the Money Market
Investment Option on April 1, 1995. Notwithstanding the
foregoing, amounts previously invested in the Republic New
York Corporation Common Stock Fund shall continue to remain
invested in the Republic New York Corporation Common Stock
Investment Option; provided, however, that contributions for
the calendar quarter commencing April 1, 1995 shall be
invested in the Money Market Investment Option in the
absence of a valid election of another Investment Option.
(iii) The investment rules for the periods
preceding and following the calendar quarter commencing
April 1, 1995 shall not be affected by this Section 8.6, but
shall be governed by the other Sections set forth in this
Article VIII.
8.7 Member-Directed Investments Under Section 404(c)
of ERISA. Effective January 1, 1994, notwithstanding anything
herein to the contrary, each Member and Beneficiary is authorized
and empowered, and shall be solely responsible, for the selection
from among the investment alternatives permitted under Section
8.1 of the Plan. The Member shall give written directions to the
Committee in such form as the Committee may require (or, to give
telephonic directions, if permitted by the mutual fund)
concerning the investment of all assets held in the Member's or
Beneficiary's Accounts under the Plan, which directions shall be
followed by the Trustee. Investment directions by Plan Members
and Beneficiaries with respect to all contributions made under
the Plan shall be furnished to the Trustee by the Committee.
Neither the Trustee, the Committee, nor the Employer
shall be under any duty to question any such direction of a
Member or Beneficiary. The Trustee shall comply as promptly as
is practicable with the directions given by a Member or by a
Beneficiary in accordance with the terms of the Plan and shall
confirm the receipt of the Member's (or Beneficiary's) direction
as well as confirm the Trustee's execution of the Member's (or
Beneficiary's) direction. Neither the Trustee, the Committee nor
the Employer shall be responsible or liable for any loss or
expense which may arise from or result from compliance with any
directions from the Member or Beneficiary. All costs and
expenses relating to compliance with a Member's or Beneficiary's
directions shall be borne by the Member's or Beneficiary's
Accounts under the Plan.
The Company intends that this Plan allow all Members
and Beneficiaries to direct the investment of all contributions
to the Plan in a manner that conforms to Section 404(c) of ERISA
and DOL Regulation Section 2550.404c-1 and that the Plan and
Trust be operated and administered in accordance with such
provisions.
8.8 Miscellaneous Provisions Regarding Investment of
Assets. In addition to the investments set forth in this
Article, the Trustee may:
(a) retain uninvested, or sell, investments to provide
amounts of cash required for purposes of any Investment Option
set forth in this Article VIII or to provide for necessary Plan
liquidity for Plan administrative needs such as hardship withdrawals.
Pending investment or amounts held in any such investment option,
the Trustee may temporarily
invest such amounts in money markets and/or other evidences of
ownership or indebtedness of a short-term nature; or
(b) invest and reinvest in interests in any trust fund
that has been or shall be created and maintained by the Company
as trustee for the collective, short-term investment of funds of
trusts for employee-benefit plans qualified under Section 401(a)
of the Code.
8.9 Construction of this Article. If a provision in
this Article conflicts with a provision of the Profit Sharing and
Savings Plan of Republic National Bank of New York Amendatory
Declaration of Trust, as amended (the "Trust Agreement"), the
provisions of the Trust Agreement shall be determinative.
<PAGE>
ARTICLE IX
MANDATORY DISTRIBUTIONS AND DISTRIBUTIONS AFTER DEATH
9.1 Mandatory Distributions. The vested Account
Balance of a Member shall be entirely distributed to such Member
or shall commence to be distributed to such Member not later than
April 1 of the calendar year following the calendar year in which
the Member attains age seventy and one-half (70-1/2).
Notwithstanding the foregoing, a Member who attained the age of
70-1/2 prior to January 1, 1988, and who is not a "5-percent owner,"
as defined in Section 1.401(a)(9)-1, B-2(d) of the Proposed
Treasury Regulations, shall not be required to commence receiving
a distribution of his Account Balance until the later of such
Member's Retirement or attainment of age 70 per cent occurs. In
addition, a Member who attained the age of 70 per cent during 1988 and
who has not retired as of January 1, 1989, shall not be required
to commence receiving a distribution of the Account Balance until
April 1, 1990.
If, under Section 6.2(a)(iii) of the Plan, a Member's
vested Account Balance is distributed in installments over five
years, such installment payments shall be made over one of the
following periods (in accordance with regulations prescribed by
the Secretary of the Treasury):
(i) The life of the Member;
(ii) the joint lives of the Member and his
designated Beneficiary or Beneficiaries;
(iii) a period not extending beyond the life
expectancy of the Member; or
(iv) a period not extending beyond the joint life
expectancy of the Member and his designated Beneficiary or
Beneficiaries.
9.2 Distributions After Death. (a) If a Member has
begun to receive his Account Balance in accordance with Section
9.1, and he dies before his entire Account Balance has been
distributed to him, the remaining portion of such Account Balance
shall be distributed at least as rapidly as under the method of
distribution being utilized under Section 6.2 as of the date of
his death.
(b) If a Member dies before he has begun to receive
his Account Balance, his entire Account Balance shall be
distributed within five (5) years following the date of his
death; provided, however, that this provision shall not be
applicable if:
(i) the Member's Account Balance is payable to or
for the benefit of a designated Beneficiary;
(ii) the Member's Account Balance will be
distributed (in accordance with regulations prescribed by
the Secretary of the Treasury) during the life of such
designated Beneficiary; and
(iii) such distribution commences not later than
one year after the date of the Member's death (or such later
date as prescribed in regulations promulgated by the
Secretary of the Treasury);
(iv) and further provided, however, that if the
designated Beneficiary referred to in Subsection (i) is the
Employee's surviving spouse, the distribution under
subsection (iii) need commence no earlier than the date on
which the Employee attains age seventy and one-half (70 per cent).
If the Member's surviving spouse dies before the
distribution of benefits to such spouse has begun, the
preceding provisions of this subparagraph (b) shall apply to
such spouse in the same manner as if such spouse were the
Member.
(c) The payment shall be made to the Member's
Beneficiary as soon after the Member's death as the Committee
shall determine to be administratively practicable; provided,
however, that the Account Balance of such Member shall be
available to the surviving spouse of such Member no later than 90
days after such Member's death.
9.3 Life Expectancy. For purposes of Sections 9.1 and
9.2, the life expectancy of an Employee and an Employee's spouse
may be redetermined not more frequently than annually (other than
in the case of a life annuity).
9.4 Prior Election. The provisions of Sections 9.1
through 9.3 shall not be applicable to the extent that a Member
has made an election prior to January 1, 1984 in accordance with
Section 242(b)(2) of the Tax Equity and Fiscal Responsibility Act
of 1982, as amended, and such election would not have
disqualified the Plan prior to such date.
9.5 Code Section 401(a)(9) Incorporated by Reference.
Notwithstanding anything else in the Plan to the contrary, all
distributions will be made in accordance with Section 401(a)(9)
of the Code, including the minimum distribution incidental
benefit requirements of Section 1.401(a)(9)-2 of the Proposed
Treasury Regulations (and any successor provisions), which is
hereby incorporated by reference into the Plan.
9.6 Missing Members. If a Member's Account Balance is
forfeited because he or his Beneficiary cannot be found, such
Account Balance shall be reinstated if a claim is subsequently
made by the Member or his Beneficiary.
9.7 Designation of Beneficiary. (a) Subject to
paragraphs (b) and (c) of this Section 9.7, a Member shall
designate a Beneficiary or Beneficiaries and may designate a
contingent Beneficiary or Beneficiaries to receive a distribution
of his Account Balance upon his death. Such Member may change
his Beneficiary designation at any time. Such designation, or
change in designation, of a Beneficiary shall be made on a form
prescribed by the Committee and in the manner prescribed by the
Committee.
(b) In case of death of a married Member, the Member's
surviving spouse shall be deemed to be the Member's Beneficiary
to receive the distribution of the Member's Account Balance
unless such surviving spouse has consented to the designation by
the Member of other Beneficiaries. No consent of the spouse
under this Section shall be effective unless either (i) such
consent is in writing, the terms of such consent acknowledge its
effect, the execution of such consent is witnessed by a person
representing the Plan or a notary public, as the Committee may
determine, and such consent otherwise complies with such rules as
the Committee may adopt, or (ii) it is established to the
satisfaction of the Committee that the required consent cannot be
obtained because the Member does not have a spouse, because the
spouse cannot be located, or because of such other circumstances
as the Secretary of the Treasury may prescribe by regulations.
Any such consent by a Member's spouse (or establishment that such
consent of a spouse cannot be obtained) shall be effective only
with respect to such spouse. The spouse's consent shall be
effective only with respect to the alternative Beneficiary set
forth in the waiver form; provided, however, that the spouse may
execute a general waiver if such waiver meets the requirements of
this Section and which, in addition, provides that the spouse
acknowledges that such spouse has the right to limit consent to a
specific Beneficiary and that the spouse voluntarily elects to
relinquish such right. In addition, a spouse may execute a
general consent that is limited to specific Beneficiaries. If
spousal consent is obtained or if, in accordance with clause (ii)
of this paragraph (b), it is established that such consent cannot
be obtained, then such Member may from time to time, subject to
the consent form executed by the Member's spouse, designate or
change a Beneficiary or Beneficiaries under the Plan to receive
the distribution of the Member's Account Balance.
(c) If a Member's spouse has consented to the
designation of an alternate Beneficiary, then the Member shall
designate such Beneficiary in a time and manner determined by the
Committee; provided, however, that if (i) the Member has not
effectively designated a Beneficiary, or (ii) the Beneficiary
designated by the Member has not survived the Member and no
alternative designation of Beneficiary shall be effective, then,
subject to the consent form executed by the Member's spouse, the
Member's Beneficiary shall be deemed to be the estate of the
deceased Member.
(d) If the Member's Beneficiary cannot be located for
a period of one year following death, despite mailing to such
Beneficiary's last known address, and if the Beneficiary has not
made a written claim for benefits within such a period to the
Committee, such Beneficiary shall be treated as having
predeceased the Member. The Committee may require such proof of
death and such evidence of the right of any person to receive all
or part of the benefit of a deceased Member as the Committee may
deem desirable.
9.8 Proof of Death and Beneficiary. The Committee may
require such proof of death and such evidence of the right of a
Beneficiary to receive all or part of the death benefit of a
deceased Member as the Committee may deem desirable.
9.9 Commutation of Payments to Estate. Any payments
owing to a Member's estate under this Plan shall be paid in a
lump sum cash payment, as described in Section 6.2(a)(i).
<PAGE>
ARTICLE X
THE TRUST FUND
10.1 Trust. As of the Effective Date, a Trust Fund has
been created under a declaration of trust by the Company under
which it acts as Trustee. The provisions of the trust instrument
contain and shall contain such powers in the Trustee as to
investment, control and disbursement of the Trust Fund, and such
other provisions not inconsistent with the Plan, applicable laws
and regulations, as the Board may from time to time authorize.
The Trustee shall use the Trust Fund to maintain the Investment
Options set forth in Article VIII of the Plan. Where permitted
by the terms of the respective Investment Options, the Trustee
may in accordance with applicable laws and governmental
regulations hold amounts of cash on deposit with the Company
and/or maintain savings and/or time accounts (including, without
limitation, accounts evidenced by certificates of deposit) with
the Company. The Trustee may, in its discretion, invest amounts
held in any of the Investment Options in any commingled trust
fund of investments which meet the requirements of Section 401(a)
of the Code. Further, the Trust Fund may acquire and hold
"qualifying employer securities," as defined in Section 407(d)(5)
of ERISA.
10.2 Investment Manager. (a) The Trustee may appoint
one or more investment managers, as defined in Section 3(38) of
ERISA, to manage, acquire and dispose of any assets of the Plan.
Any such investment manager shall be an investment adviser
registered under the Investment Advisers Act of 1940, a bank as
defined in that Act, or an insurance company qualified to perform
investment services under the laws of at least two States. The
appointment of any such investment manager shall not be effective
until such investment manager has acknowledged in writing that it
is a fiduciary with respect to the Plan.
(b) If an investment manager is appointed
pursuant to this Section 10.2, the Trustee shall not be liable
for the investment manager's acts or omissions unless the Trustee
(i) knowingly participates in or conceals the
investment manager's breach of fiduciary duty, knowing that
it is a breach,
(ii) enables the investment manager to commit a
breach by failure of the Trustee to act prudently, or
(iii) has knowledge of a breach by the investment
manager and has not made reasonable efforts under the
circumstances to remedy the breach.
<PAGE>
ARTICLE XI
ROLLOVERS AND TRANSFERS
11.1 Rollover Amounts. An Employee may, with the
consent of the Committee, make the following transfers to the
Trust Fund:
(a) Transfer from a Qualified Plan. Subject to
Section 12.3, an Employee may transfer to the Trust Fund all or a
portion of the cash received or the proceeds from the sale of the
property received by such Employee from a plan qualified under
Section 401(a) of the Code provided that (i) the amount received
was an "eligible rollover distribution" (as defined in Section
11.4) received by the Employee from such qualified plan, and (ii)
the Employee transfers to the Trust Fund the cash received or the
proceeds from the sale of the property received in such
distribution within sixty (60) days from the date on which the
Employee received such property. In addition, no part of such
transfer may be attributable to contributions made on behalf of
an Employee who was a five percent owner (within the meaning of
Section 7.2(c)) in a Top-Heavy Plan (as defined in Section 416(g)
of the Code) when such contributions were made.
(b) Transfer from Individual Retirement Account.
Subject to Section 11.3, an Employee may transfer to the Trust
Fund the entire amount received by the Employee in cash from an
individual retirement account (as defined in Section 408 of the
Code) provided that (i) no amount in the account is attributable
to any source other than a rollover contribution from a plan
qualified under Section 401(a) of the Code and earnings on such
rollover contribution, (ii) the Employee transfers to the Trust
Fund all of the property the Employee received in such
distribution within sixty (60) days from the date on which he
received such property, and (iii) at no time during the one-year
period ending on the date of such receipt did such Employee
receive any other amounts from an individual retirement account,
individual retirement annuity or retirement bond which were not
includible in the Employee's gross income.
11.1.1 Segregation of Rollover Amounts. (a) All
property transferred to the Trust Fund under Section 11.1
shall be invested in accordance with Section 8.1 of the Plan
and shall be held and accounted for by the Trustee separate
and apart from the Employee's Accounts set forth under
Section 5.10 of the Plan.
(b) An Employee shall at all times be one hundred
percent (100%) vested in the property transferred to the
Trust Fund under Section 11.1. Such property shall be
distributed to the Employee or Beneficiary within the time
required for distribution of the Employee's Account Balance
pursuant to Article X.
11.2 Trustee to Trustee Transfers. (a) The Trustee,
at the direction of the Committee, may transfer all of the
property representing an Employee's Account Balance to the
trustee(s) of any trust qualified under Section 401(a) of the
Code.
(b) Subject to Section 11.3, the Trustee at the
direction of the Committee, may accept as part of the Trust Fund,
funds transferred to the Trust Fund from a trust qualified under
Section 401(a) of the Code. Such funds shall be invested in
accordance with Section 8.1 of the Plan and shall at all times be
maintained by the Trustee in a segregated account separate and
apart from an Employee's accounts set forth under Section 5.10 of
the Plan.
(c) An Employee shall at all times be one hundred
percent (100%) vested in any funds transferred to the Trust Fund
under this Section 11.2. Such funds shall be distributed to the
Employee or such Employee's Beneficiary within the time required
for distribution of the Employee's Account Balance pursuant to
Article X.
11.3 Limitation Regarding Transfers. Notwithstanding
the foregoing, the determination as to whether the Trustees shall
accept any transfers under this Article shall be completely
discretionary with the Committee, provided that such
determination is made on a nondiscriminatory basis.
11.4 Direct Rollover Distribution to an Eligible
Retirement Plan. This Section 11.4 applies to distributions made
on or after January 1, 1993. Notwithstanding any provision of
the Plan to the contrary that would otherwise limit a
distributee's election under this Section 11.4, a distributee may
elect, at the time and in the manner prescribed by the Committee,
to have any portion of an eligible rollover distribution that is
equal to at least $500 paid directly to an eligible retirement
plan specified by the distributee in a direct rollover.
An eligible rollover distribution is any distribution of
all or any portion of the balance to the credit of the
distributee, except that an eligible rollover distribution does
not include: any distribution that is one of a series of
substantially equal periodic payments (not less frequently than
annually) made for the life (or life expectancy) of the
distributee or the joint lives (or joint life expectancies) of
the distributee and the distributee's designated beneficiary, or
for a specified period of ten years or more; any distribution to
the extent such distribution is required under Section 401(a)(9)
of the Code; and the portion of any distribution that is not
includible in gross income (determined without regard to the
exclusion for net unrealized appreciation with respect to
employer securities).
An eligible retirement plan is an individual retirement
account described in Section 408(a) of the Code, an individual
retirement annuity described in Section 408(b) of the Code, an
annuity plan described in Section 403(a) of the Code, or a
qualified defined contribution plan described in Section 401(a)
of the Code, that accepts the distributee's eligible rollover
distribution. However, in the case of an eligible rollover
distribution to the surviving spouse, an eligible retirement plan
is an individual retirement account or individual retirement
annuity.
A distributee includes an employee or former employee.
In addition, the employee's or former employee's surviving spouse
and the employee's or former employee's spouse or former spouse
who is the alternate payee under a qualified domestic relations
order, as defined in Section 414(p) of the Code, are distributees
with regard to the interest of the spouse or former spouse.
A direct rollover is a payment by the Plan to the
eligible retirement plan specified by the distributee.
<PAGE>
ARTICLE XII
ADMINISTRATION
12.1 Employee Benefits and Compensation Committee. (a)
The Board shall appoint an Employee Benefits and Compensation
Committee of not less than three of its number, which shall
administer the Plan in accordance with its terms. The Committee
may, but need not, consist of the same members as the Committee
serving under the Company's Retirement Plan; provided, however,
that only members of the Board who are not Members or former
Members shall be eligible to serve on the Committee. Each member
of the Committee shall serve for one Plan Year and until his
successor is appointed. The Board may remove a Committee member
at any time and appoint a successor to complete his term. The
Committee shall elect a Chairman and may appoint a Secretary who
need not be a member of the Committee.
(b) The members of the Committee shall serve
without compensation for service as such, but the Company shall
pay or reimburse the Committee for all expenses reasonably
incurred and the Company shall indemnify the Committee and each
member thereof against loss occurred by any act or omission to
act taken or determined upon it or by him, except any such act or
omission which is due to willful misconduct, fraud or lack of
good faith.
12.2 Duties of the Committee. The Committee shall have
the responsibility of administering the Plan and carrying out the
provisions thereof. The Committee shall maintain proper records
showing the age and service history of each Employee eligible to
be a Member, and also maintain such accounts covering fiscal
transactions under the Plan and such other accounts and records
as the Committee shall deem necessary or appropriate. The
Committee may make such administrative rules and hold meetings at
such times as it may deem proper. Action by the Committee shall
be by a majority vote, and minutes of any action taken shall be
recorded.
12.3 Powers of the Committee. (a) The Committee shall
have the exclusive right, power, and authority, in its sole and
absolute discretion, to administer, apply and interpret the Plan,
Trust agreement and any other Plan documents and to decide all
matters arising in connection with the operation or
administration of the Plan. Without limiting the generality of
the foregoing, the Committee shall have the sole and absolute
discretionary authority to: (1) take all actions and make all
decisions with respect to the eligibility for, and the amount of,
benefits payable under the Plan; (2) formulate, interpret and
apply rules, regulations and policies necessary to administer the
Plan in accordance with its terms; (3) decide questions,
including legal or factual questions, relating to the calculation
and payment of benefits under the Plan; (4) resolve and/or
clarify any ambiguities, inconsistencies and omissions arising
under the Plan, Trust agreement or other Plan documents; and (5)
process, and approve or deny, benefit claims and rule on any
benefit exclusions. All determinations made by the Committee
with respect to any matter arising under the Plan, Trust
agreement and any other Plan documents shall be final and binding
on all affected Plan Members (and their Beneficiaries).
(b) The Committee may engage the service of legal
counsel (who may also represent the Company and/or the Trustee)
and such actuarial and other services as it deems advisable for
the proper administration of the Plan. The Committee may direct
that the costs of such services, and such other reasonable
expenses as may be incurred in the administration of the Plan,
shall be paid out of the funds of the Plan, unless the Company
shall pay them.
(c) The Members of the Committee may provide for
the allocation and delegation of all or part of their duties
hereunder as they, in their sole discretion, may decide.
(d) If the Committee shall determine that by
reason of illness, senility, insanity, or for any other reason,
it is undesirable to make any payment to the Member, former
Member, Beneficiary or any other person entitled thereto, the
Committee shall be at liberty to direct the application of any
amount so payable to the use or benefit of such person in any
manner that the Committee may deem advisable. The Committee
shall also be at liberty to direct the withholding of any payment
under the Plan due to any person under legal disability until a
representative competent to receive such payment in his behalf
shall be appointed pursuant to law.
(e) Subject to Section 16.2, the right to receive
a benefit under the Plan shall not be subject in any manner to
anticipation, alienation, or assignment, nor shall such right be
liable for or subject to debts, contracts, liabilities,
engagements or torts. Should any Member, former Member,
Beneficiary or other person attempt to anticipate, alienate or
assign his interest in or right to a benefit, or should any
person claiming against him seek to subject such interest or
right to legal or equitable process, all the interest or right of
such Member or former Member, Beneficiary or other person in the
Plan shall cease, and in that event such interest or right shall
be held or applied, at the direction of the Committee, for or to
the benefit of such Member or former Member, Beneficiary or other
person or his spouse, children, or other dependents in such
manner and in such proportion as the Committee may deem proper.
(f) A member of the Committee shall not be liable
for any act of omission or commission by himself or by the
Committee, except as provided by law and except for his own
individual willful and intentional malfeasance.
(g) The Employer hereby agrees to indemnify and
save harmless each person now or hereafter acting as a member of
the Committee, and any member of the Board of Directors or
officer of the Employer or other employee of the Employer or any
affiliate (other than the Member with respect to the Member's
direction of investments pursuant to Article VIII) who performs
any services, or has any responsibilities, under the Plan, from
all loss or damage that may or might result from his acts in such
connection, except such acts as constitute willful misconduct
upon his part.
(h) Claims Procedure. Any application for
benefits by a Member or his Beneficiary submitted to the
Committee on the appropriate form shall constitute a claim. In
any instance where such claim is denied in whole or in part by
the Committee, their decision shall be submitted in writing to
the Member or his Beneficiary setting forth the following:
(a) Basis for denial of claim;
(b) Plan provision on which denial is based;
(c) Description of any additional
information required of the Member or
his Beneficiary; and
(d) An explanation of the procedures for
reviewing claims under the Plan.
Upon receipt of denial of a claim, the Member or
Beneficiary may submit to the Committee within 60 days an appeal
requesting further review. Upon receipt of a request for review,
the Committee will meet and render a decision by not later than
120 days following the receipt of such request. The Committee's
ultimate decision shall be submitted to the Member or his
Beneficiary in writing setting forth all specific information on
which such decision has been based.
(i) The foregoing powers of the Committee shall
be in addition to such other powers as may be conferred upon it
by other provisions of the Plan.
<PAGE>
ARTICLE \066
MORE THAN ONE EMPLOYER
13.1 Merger of Plans. In the case of any merger,
consolidation, or transfer of the assets or liabilities of the
Plan to any other plan, the terms of such merger, consolidation,
or transfer shall be such that each Member would receive, if the
plan then terminated, a benefit which would be no less than the
benefit which he would have received if this Plan terminated
immediately before such merger, consolidation or transfer.
13.2 Inclusion of Employers and Cessation of Employer
Status. Any corporation may become an adopting Employer if, with
the consent of the Company, it agrees to adopt the Plan and files
with the Company such written instruments evidencing such
adoption as may be required by the Company. Any adopting
Employer may cease being an Employer under the Plan by filing
with the Company such written instruments evidencing such
cessation as may be required by the Company.
13.3 Transfer of Employees Between Employers. A
transfer of employment of a Member from one Employer to another
Employer shall not be deemed a termination of employment for
purposes of participation in the Plan. Such Member's Years of
Service with all Employers under the Plan shall be aggregated
provided that simultaneous employment with more than one Employer
shall be treated as one period of service.
13.4 Successor Employers. In the event of the
dissolution, merger, consolidation or reorganization of an
Employer, provision may be made for the Plan and Trust to be
continued by the Employer's successor and, in that event, the
successor shall be substituted for the Employer under the terms
of the Plan. The substitution of the successor shall constitute
an assumption by the successor of all Plan liabilities to which
the Employer was subject and the successor thereafter shall have
all the powers, duties and responsibilities of the Employer under
the Plan.
<PAGE>
ARTICLE XIV
AMENDMENT AND TERMINATION
14.1 Amendment. The Company, by resolution of the
Board, at any time and from time to time, may amend in whole or
in part any or all of the provisions of the Plan. However, (i)
no amendment shall authorize or permit any part of the Trust Fund
to be used for or diverted to purposes other than the exclusive
benefit of Members and Beneficiaries or cause or permit any
portion of the Trust Fund to revert to or become the property of
the Employer prior to the satisfaction of all liabilities of the
Plan to Members and Beneficiaries; and (ii) no amendment (except
to the extent that it is made retroactive to secure a favorable
determination as to the initial or continued qualification of the
Plan under the Code) shall reduce the "accrued benefit" (as such
term is determined under Section 411(d)(6) of the Code) of any
Member or Beneficiary existing immediately prior to such
amendment.
14.2 Termination. (a) The Company, by resolution of
the Board, at any time, may terminate the Plan.
(b) Upon any termination, or partial termination,
of the Plan, or upon complete discontinuance of an Employer's
contributions hereunder, the rights of all affected Members and
Beneficiaries having an interest in the Trust Fund at the
effective date of such termination, partial termination or
discontinuance in the amounts credited to their Account Balances
shall be nonforfeitable, and the Committee shall direct the
Trustee to distribute to each such affected Member and
Beneficiary the full value of the undistributed Account Balance
at that date by paying the full amount to be distributed in one
single payment. In the case of a partial termination, the
nonforfeitable rights shall be applicable only to the portion of
the Plan terminated. In the case of a discontinuance of
contributions, the nonforfeitable rights shall be applicable only
to Employees of the Employer which discontinued its
contributions.
(c) Notwithstanding any termination of the Plan
or discontinuance of the Employer contributions hereunder, the
provisions of Article XII hereof and the declaration of trust
pursuant to Article X shall continue in effect until the Trustee
shall have completed the distribution of the Trust Fund and its
accounts have been settled.
<PAGE>
ARTICLE XV
VOTING AND OTHER RIGHTS
15.1 Voting. Each Member who has invested in RNYC
Stock shall be entitled to instruct the Trustee as to the manner
in which the Republic New York Corporation Common Stock ("RNYC
Stock") held in the Republic New York Corporation Common Stock
Investment Option (the "RNYC Stock Investment Option")
attributable to the Member's Account Balance shall be voted on
each matter brought before an annual or special stockholders'
meeting of Republic New York Corporation (the "Corporation").
Before each such meeting of stockholders, the Company shall cause
the Corporation to furnish to each Member who has invested in
RNYC Stock a copy of all proxy solicitation materials, together
with a form requesting confidential instructions to be given to
the Trustee on how the RNYC Stock attributable to the Member's
Account Balance shall be voted on each such matter. Upon timely
receipt of such instructions, the Trustee shall on each such
matter vote such RNYC Stock as instructed. Where no such voting
instructions have been received by the Trustee, the Trustee shall
vote such RNYC Stock as to which timely instructions were not
received by the Trustee in the same proportion as shares of RNYC
Stock as to which timely instructions have been received by the
Trustee.
15.2 Tender or Exchange Offer. (a) Each Member who
has invested in RNYC Stock shall have the right, based upon the
RNYC Stock held in the RNYC Stock Investment Option attributable
to the Member's Account Balance, to direct the Trustee in writing
as to the manner in which to respond to a tender or exchange
offer for such RNYC Stock and the Trustee shall tender or not
tender such RNYC Stock for each such Member's Account based upon
such instructions. The Company shall utilize its best efforts to
cause the Corporation to timely distribute or cause to be
distributed to each Member who has invested in RNYC Stock such
identical written information (if any) as will be distributed to
stockholders of the Corporation in connection with any such
tender or exchange offer and a tender or exchange offer
instruction form for return to the Trustee or its designee.
(b) The form described in Section 15.2(a) shall
show the number of full shares of RNYC Stock attributable to the
Member's Account Balance (whether or not vested) and shall
provide a means for him or her to (i) instruct the Trustee
whether or not to tender such shares and (ii) specify the
Investment Option(s) under the Plan in which the proceeds of any
sale shall be invested in the event such shares are sold pursuant
to the tender offer. Such form shall also advise each Member who
has a portion of his or her Account Balance invested in the RNYC
Stock Investment Option that, in the event the Trustee is not
provided with tender or exchange instructions, the Trustee shall
not tender or exchange shares of RNYC Stock as to which timely
instructions were not received by the Trustee. Such form shall
further advise that, in the event a Member's RNYC Stock is sold
and the Member has not specified the Investment Option(s) in
which the proceeds shall be invested, such proceeds shall be
invested in the Money Market Investment Option (for periods prior
to April 1, 1995, the Savings Fund), until a further investment
election is made by the Member pursuant to the Plan. Except for
the foregoing, the Company shall not cause the Corporation to
provide to the Member any information or guidance not provided to
all stockholders. Upon receipt of such instructions, the Trustee
shall tender or not tender (or withdraw from tender) or exchange
such RNYC Stock in accordance with such instructions, and the
Trustee shall not tender or exchange any such shares of RNYC
Stock as to which timely instructions were not received by the
Trustee.
(c) In implementing the foregoing procedures, the
Company will act fairly, in the best interests of each Member who
has invested in RNYC Stock, and in a manner which will not impose
undue pressure on any such Member as to what tender or exchange
offer instructions he or she should give to the Trustee. The
giving of an instruction to the Trustee to tender or exchange
RNYC Stock shall not be deemed to constitute withdrawal or
suspension from the Plan or forfeiture of any portion of such a
Member's interest in the Plan. Accounts shall be adjusted
appropriately to reflect the Trustee's execution of their
instructions, or if no instructions were received, to reflect the
Trustee's actions on their behalf in accordance with this Article
XV. Proceeds resulting from the sale of any RNYC Stock shall be
invested in the Investment Option(s) specified by the Member in
his or her instructions to the Trustee and, in the absence of
such instructions, such proceeds shall be invested in the Money
Market Investment Option (for periods prior to April 1, 1995, the
Savings Fund), until a further investment election is made by the
Member pursuant to the Plan.
15.3 Member is Named Fiduciary. Notwithstanding
anything in the Plan to the contrary, each Member is, for
purposes of this Article, hereby designated a "named fiduciary,"
within the meaning of Section 402(a)(1) of ERISA, with regard to
his Account Balance.
15.4 Effective Date. The provisions of this Article
XVI shall be effective as of January 1, 1992.
<PAGE>
ARTICLE XVI
MISCELLANEOUS
16.1 Rights of Members. An Employer shall have no
liability in respect to the payment of benefits or otherwise
under the Plan, except to pay over to the Trustee as provided in
the Plan such contributions as are made by the Employer; and the
Employer shall have no liability in respect to the administration
of the Trust or of the Fund held by the Trustee, and each Member
and/or Beneficiary shall look solely to the Fund for any payments
or benefits under the Plan. No Member shall have any right or
claim to any benefit under the Plan except in accordance with the
provisions of the Plan, and then only to the extent that there
are funds available therefor in the hands of the Trustee. The
establishment of the Plan shall not be construed as creating any
contract of employment between the Employer and any Employee or
otherwise conferring upon any Employee or other person any legal
right to continuation of employment, nor as limiting or
qualifying the right of the Employer to discharge any Employee
without regard to the effect that such discharge might have upon
his rights under the Plan.
16.2 Qualified Domestic Relations Order.
(a) Definition. The term "qualified domestic relations order"
means any judgment, decree, or order, including approval or a
property settlement agreement (a "domestic relations order"),
which:
(i) relates to the provision of child support,
alimony payments, or marital property rights to a spouse,
former spouse, child or other dependent of a Member;
(ii) is made pursuant to a state domestic
relations law (including a community property law); and
(iii) which meets the requirements of subparagraph
(b).
(b) Requirements. The provisions of Section
13.3(e) shall not be applicable to a qualified domestic relations
order and payment of benefits shall be made in accordance with
the terms of such order provided that such order:
(i) creates or recognizes the existence of an
alternate payee's (as hereinafter defined) right to, or
assigns to an alternate payee the right to, receive all or a
portion of the benefits payable to a Member under the Plan;
(ii) clearly specifies
(1) the name and the last known mailing
address (if any) of the Member and the name and mailing
address of each alternate payee covered by the order;
(2) the amount or percentage of the Member's
benefits to be paid by the Plan to each such alternate
payee or the manner in which such amount or percentage
is to be determined;
(3) the number of payments or period to
which such order applies; and
(4) the name of each Plan to which such
order applies;
(iii) does not require the Plan to provide any type
or form of benefit, or any option, not otherwise
provided under the Plan;
(iv) does not require the Plan to provide
increased benefits (determined on the basis of actuarial
value); and
(v) does not require the payment of benefits to
an alternate payee which are required to be paid to
another alternate payee under another order previously
determined to be a qualified domestic relations order.
(c) Payments Prior to Separation from Service.
In the case of any payment made before a Member has separated
from the service of the Employer, a qualified domestic relations
order shall not be considered as failing to meet the requirements
of subsection (iii) of subparagraph (b) solely because such order
requires that payment of benefits be made to an alternate payee:
(i) on or after the date on which the Member
attains (or would have attained) the earliest retirement age
which shall be defined, for purposes of this Section 16.2,
as the earlier of (i) the date the Member is entitled to a
distribution under the Plan or (ii) the date which is ten
(10) years prior to a Member's Normal Retirement Age;
(ii) as if the Member had retired on the date on
which such payment is to begin under such order (but taking
into account only the value of the Member's current Account
Balance and not taking into account the value of any subsidy
of the Employer for early retirement); and
(iii) in any form in which such benefits may be
paid under the Plan to the Member (other than in the form of
a joint and survivor annuity with respect to the alternate
payee and his subsequent spouse.
(d) Former Spouse. (i) To the extent provided
in any qualified domestic relations order the former spouse of a
Member shall be treated as a surviving spouse of such Member for
purposes of Section 401(a)(11)(d) of the Code; and
(ii) if married for at least one year to the
Member, such former spouse shall be treated as meeting the
requirements of Section 417(d) of the Code.
(e) Notice. The Committee shall promptly notify
a Member and any other alternate payee of the receipt of a
domestic relations order and of the Plan's procedure for
determining whether the order qualifies as a qualified domestic
relations order under this Section 16.2. Within a reasonable
period of time after the receipt of such order, the Committee, in
accordance with such procedures as it shall from time to time
establish, shall determine whether such order qualifies as a
qualified domestic relations order under this Section 16.2 and
shall notify the Member and each alternate payee of such
determination.
During any period of time in which the issue of whether
a domestic relations order qualifies as a qualified domestic
relations order under this Section 16.2 is being determined by
the Committee, by a court of competent jurisdiction, or
otherwise, the Committee shall segregate in a separate account in
the Plan or in an escrow account the amounts which would have
been payable to the alternate payee during such period if the
order had been determined to be a qualified domestic relations
order under this Section 16.2. If within eighteen (18) months it
is determined that such order is a qualified domestic relations
order, the Committee shall pay the segregated amounts (plus any
interest thereon) to the person or persons entitled thereto. If
within eighteen (18) months it is determined that such order is
not a qualified domestic relations order under this Section 16.2,
or the issue as to whether such order so qualifies is not
resolved, then the Committee shall pay the segregated amounts
(plus any interest thereon) to the person or persons who would
have been entitled to such amounts if there had been no order.
Any determination that an order is a qualified domestic relations
order under this Section 16.2 which is made after the end of the
eighteen-month period shall be applied prospectively only.
(f) Definition of Alternate Payee. The term
"alternate payee" means any spouse, former spouse, child, or
other dependent of a Member who is recognized by a domestic
relations order as having a right to receive all, or a portion
of, the benefits payable under the Plan with respect to such
Member.
(g) Transitional Rules. The provisions of this
Section 16.2 shall become effective as of January 1, 1985;
provided, however, that in the case of a domestic relations order
entered before such date, the Committee:
(i) shall treat such order as a qualified
domestic relations order under this Section 16.2 if the
Trustee is paying benefits pursuant to such order on
January 1, 1985; and
(ii) may treat any other domestic relations order
entered before January 1, 1985 as a qualified domestic
relations order even if such order does not meet the
requirements of the preceding provisions of this Section
16.2.
(h) Code Section 414(p) Incorporated by
Reference. Qualified domestic relations order status shall in
all cases be determined in accordance with Section 414(p) of the
Code.
16.3 Return of Contributions. (a) The Plan has been
adopted upon the condition that it shall be qualified under
Section 401(a) of the Code, that the Trust shall be exempt from
taxation under Section 501(a) of the Code, and that contributions
thereto shall be deductible by an Employer for federal income tax
purposes. If the Plan does not initially so qualify, any
contribution of an Employer conditioned upon such initial
qualification may be returned to the Employer within one year
after the date of the denial of the qualification of the Plan.
(b) Employer contributions to the Plan are made
on the condition that they are deductible under Section 404 of
the Code. In the event that the Internal Revenue Service
disallows a deduction for all or a portion of such contributions,
such contributions (to the extent of the disallowance) shall be
returned to the Employer within one year after the date of the
disallowance.
(c) Any contribution to the Plan which was made
because of a mistake of fact may be returned to the Employer
within one year after the contribution was made.
16.4 No Diversion. The Plan is established for the
exclusive benefit of the Members and Beneficiaries of the Plan.
Except as provided in Section 16.3, no assets of the Plan or
Trust may revert to an Employer nor may such assets be used for
any purpose other than payment of expenses of the Plan and
payment of benefits to Members and Beneficiaries.
16.5 Commencement of Benefits. Unless a Member elects
otherwise in writing, payment of benefits to such Member shall
commence no later than the sixtieth (60th) day after the latest
of the end of the Plan Year in which (1) the Member attains the
earlier of age sixty-five (65) or the normal retirement date
under the Plan, (2) occurs the tenth (10th) anniversary of the
date on which the Member commenced participation in the Plan, or
(3) the Member terminates his employment with an Employer.
Subject to Section 9.1, if a Member makes an election to defer
payment of benefits, the Member shall submit the amount of such
benefits and the date on which payment shall commence.
16.6 Benefits Paid Solely from Trust Fund. All
benefits payable under the Plan shall be paid and provided for
solely from the Trust Fund, and the Employer shall have no
liability or responsibility therefor.
16.7 Gender. Words used in the masculine gender shall
be deemed to include similar words in the feminine gender where
appropriate. Words used in the singular number shall be deemed
to include similar words in the plural number where appropriate
and words used in the plural number shall be deemed to include
similar words in the singular number where appropriate.
16.8 Law Governing. The Plan is established under and
shall be construed and administered in complete accordance with
ERISA, and, to the extent not preempted by ERISA, the laws of the
State of New York.
16.9 Illegal Provisions. If any provision of this Plan
is held to be illegal, invalid or unenforceable for any reason,
this shall not affect any other provision of the Plan, and this
Plan shall be construed as if said illegal, invalid or
unenforceable provision had never been inserted herein.
16.10 No Additional Rights Created. Neither the
establishment of this Plan, nor any modification thereof, nor the
payment of any benefits hereunder, shall be construed as giving
to any Member, Employee (or any beneficiary of either), or other
person, any legal or equitable right against the Employer or any
officer, director or employee thereof; and in no event shall the
terms and conditions of employment by the Employer of any
Employee be modified or in any way affected by this Plan.
16.11 Construction. The respective terms and
provisions of the Plan shall be construed, whenever possible, to
be in conformity with the requirements of the Code and ERISA, or
any subsequent laws or amendments thereto. To the extent not in
conflict with the preceding sentence, the construction and
administration of the Plan shall be in accordance with the laws
of the State of New York applicable to contracts made and to be
performed within the State of New York (without reference to its
conflicts of law provisions).
16.12 Incompetency. In the event that the Committee
finds that a Member (or designated Beneficiary) is unable to care
for his or her affairs because of illness or accident, then
benefits payable hereunder, unless claim has been made therefor
by a duly appointed guardian, committee, or other legal
representative, may be paid in such manner as the Committee shall
determine, and the application thereof shall be a complete
discharge of all liability for any payments or benefits to which
such Member (or designated Beneficiary) was or would have been
otherwise entitled under this Plan.
16.13 Payments to a Minor. Any payments to a minor
from this Plan may be paid by the Committee in its sole and
absolute discretion (a) directly to such minor; (b) to the legal
or natural guardian of such minor; or (c) to any other person,
whether or not appointed guardian of the minor, who shall have
the care and custody of such minor. The receipt by such
individual shall be a complete discharge of all liability under
the Plan therefor.
16.14 Headings. The headings of the Plan are inserted
for convenience of reference only and shall have no effect upon
the meaning of the provisions hereof.
<PAGE>
EXHIBIT A
Calculation of a Member's Employer Allocation for a Plan Year
If the Company makes an Employer Allocation for a Plan
Year pursuant to Section 3.3 of the Plan, such Employer
Allocation shall be allocated among the Members of the Plan who
are in the employ of the Employer on the last day of the Plan
Year and among Members whose death, Disability or Retirement
shall have occurred during such Plan Year or who have been
granted an Approved Absence during such Plan Year which has not
expired as of the last day of the Plan Year. Such allocation
shall be credited to the account of each such Member as of the
end of such Plan Year in an amount determined by following the
following two steps:
(1) Compute the amount resulting under the following
schedule:
Portion of
Member's
Compensation for
Plan Year<PAGE>
Member's Allocation (Percentage
on Such Portion of Compensation)<PAGE>
1989 1990 1991 1992 1993-1994
<PAGE>
First $15,000 9
.00 per cent<PAGE>
9.50 per cent 9.75 per cent 9.75 per cent
<PAGE>
9.75 per cent $15,000 to
40,000<PAGE>
8.00 per cent 8.50 per cent 9.00 per cent 9.00 per cent
<PAGE>
9.00 per cent $40,000 to
$65,000<PAGE>
7.50 per cent 7.50 per cent 7.50 per cent 7.50 per cent
<PAGE>
7.50 per cent $65,001 to
$90,000<PAGE>
6.50 per cent 6.50 per cent 6.50 per cent 6.50 per cent
<PAGE>
6.50 per cent $90,001 to
$100,000<PAGE>
5.50 per cent 5.50 per cent 5.50 per cent
<PAGE>
5.50 per cent 5.50 per cent
<PAGE>
Over $100,000 <PAGE>
0.0 per cent<PAGE>
0.0 per cent
<PAGE>
0.0 per cent 0.0 per cent 0.0 per cent
(2) Reduce the amount computed under step 1 by the
dollar value of the "Flex Credits" (as defined in
the Flex Fund) previously allocated to the Member
under the Flex Fund during the Plan Year for which
the allocation under step 1 is made.
For purposes of this Exhibit A, a Member's
Compensation for any Plan Year shall be the amount
of Compensation which such Member earned during
such Plan Year; provided, however, that any
Compensation earned by the Member during the
period preceding the date as of which such Member
met the eligibility requirement for such
contributions, as set forth in Section 2.1(b),
shall be disregarded.
Notwithstanding the foregoing, the Board may, by
resolution, revise the allocation schedule set
forth in this Exhibit A on an annual basis or at
such other times as the Board shall determine.
EXHIBIT B
Special Provisions for Former SafraBank Florida
and SafraBank California Employees
The following are special rules that apply with respect
to the account balances of former SafraBank Florida and SafraBank
California Employees (collectively "Safra Employee") transferred
from the Safra Corp. Tax Deferred Savings Profit Sharing Trust
(the "Safra Plan") to the Plan (the "Transferred Amount");
subject to the provisions set forth in E. below, earnings on such
account balances that accrue after they have been transferred to
the Plan and additional contributions to the Plan with respect to
such Employees are governed by the distribution requirements,
investment options and other rules of this Plan.
A. Distribution Options:
Subject to C. below, within the 90-day period ending on
the date that a Safra Employee's benefits under the
Plan are scheduled to commence, such Safra Employee may
elect to receive his Transferred Amount under the
following options (in addition to the distribution
options offered under the Plan), if his Account Balance
under the Plan at his termination of employment from
the Employer is greater than $3,500:
1. Lump sums;
2. Single life annuity;
3. 10-year period certain life annuity;
4. 50 per cent or 100 per cent joint and survivor annuity, for Safra
Employees who are married on the date that
benefits are scheduled to commence; and
5. Monthly, quarterly, semi-annual, or annual cash
installments over a 10 year period certain.
Balances less than $3,500 will be distributed in the
form of a lump sum as soon as practicable following the
Safra Employee's termination of employment with the
Employer.
B. In-Service Withdrawals:
Safra Employees shall have the right to receive in-
service withdrawals after age 59 per cent and in-service
withdrawals of pre-1987 employee contributions included
in the Transferred Amount.
C. Special Provisions for Married Safra Employees Who
Elect Life Annuity Forms:
Notwithstanding the foregoing, if a Safra Employee is
married on the date his benefits from the Plan are
scheduled to commence from the Plan and he elects to
receive his Transferred Amount either in the form of a
single life annuity or in the form of a 10-year period
certain life annuity, such Member shall be subject to
the following rules:
1. 50 per cent Joint and Survivor Annuity is Normal Form.
The Safra Employee shall receive his benefits in
the form of a 50 per cent joint and survivor annuity
unless he elects to waive such benefit form in the
manner described in subparagraph 2. below.
2. Right to Waive. Such Safra Employee may elect at
any time during the applicable election period (as
defined below) to waive payment of the 50 per cent joint
and survivor annuity and to receive his benefits
under any of the other forms described in
paragraph A. above. The waiver shall set forth
the information regarding the alternative
designated Beneficiary and/or form of benefit
payment which must be consented to by the Safra
Employee's spouse in accordance with subparagraph
3. of this Paragraph C.; provided, however, that,
consistent with Section 1.401(a)-20, Q&A 16, of
the Treasury Regulations, no spousal consent shall
be required if the Safra Employee elects the 100 per cent
joint and survivor annuity form under which the
Safra Employee's spouse is the Safra Employee's
designated Beneficiary. A Safra Employee may
revoke any such waiver at any time during the
applicable election period.
3. Spouse's Consent. No waiver elected under
subparagraph 2. shall be effective unless the
Safra Employee's spouse consents in writing to
such waiver, the terms of such consent acknowledge
the effect of the waiver, and the waiver is
witnessed by a representative of the Committee or
a notary public. The spouse's consent to such
waiver shall be irrevocable.
The provisions of the preceding paragraph shall
not be applicable if the Committee is satisfied
that the required consent cannot be obtained
because the Safra Employee does not have a spouse,
because the spouse cannot be located, or because
or such other circumstances as the Secretary of
the Treasury may prescribe by regulations.
The spouse's consent shall be effective only with
respect to the alternative Beneficiary and/or form
of benefit payment set forth in the waiver form;
provided, however, that the spouse may execute a
general consent to waive the 50 per cent joint and
survivor annuity and change the designated
Beneficiary and/or the optional form of benefit
payment without any requirement of further consent
by such spouse. Such consent shall provide that
the spouse acknowledges that such spouse has the
right to limit consent to a specific Beneficiary
and/or form of benefit payment and that the spouse
voluntarily elects to relinquish either or both of
such rights. In addition, a spouse may execute a
general consent that is limited to specific
Beneficiaries and/or form of benefit payments. If
spousal consent is obtained or if, in accordance
with the previous paragraph, it is established
that such consent cannot be obtained, then such
Safra Employee may from time to time, subject to
the consent form executed by the Safra Employee's
spouse, designate or change a Beneficiary or
Beneficiaries under the Plan to receive the
distribution of the Safra Employee's Transferred
Amount and/or change the form in which he will
receive such Transferred Amount under the Plan.
4. Applicable Election Period. The term "applicable
election period" for the purposes of the 50 per cent joint
and survivor annuity means the ninety (90) day
period ending on the date the Safra Employee's
benefits are scheduled to commence.
5. Required Information - 50 per cent Joint and Survivor
Annuity. The Committee shall provide to each
Safra Employee subject to the provisions of this
Paragraph C., no less than 30 days and no more
than 90 days before the date the Safra Employee's
benefits are scheduled to commence, a written
explanation of:
a. the terms and conditions of the 50 per cent joint and
survivor annuity;
b. the Safra Employee's right to make, and the
effect of an election to waive, the 50 per cent joint
and survivor annuity;
c. the rights of the Safra Employee's spouse
under subparagraph 3.; and
d. the right to make, and the effect of a
revocation of, an election under
subparagraph 2.
D. Qualified Preretirement Survivor Annuity:
If a Safra Employee elects to receive a distribution of his
Transferred Amount either in the form of a single life
annuity or in the form of a 10-year period certain life
annuity, and such Safra Employee dies prior to the date his
benefits are scheduled to commence, the surviving spouse of
the Safra Employee shall receive the Qualified Preretirement
Survivor Annuity benefit described in Section 417(c)(2) of
the Code which is a life annuity, the actuarial equivalent
of which is not less than 50 percent of the value of the
Transferred Amount. The remaining portion of the
Transferred Amount may be transferred to the Safra
Employee's designated nonspouse Beneficiary.
E. Separate Accounting:
If a Safra Employee elects to receive a distribution of his
Transferred Amount either in the form of a single life
annuity or in the form of a 10-year certain life annuity, a
separate account shall be established promptly following
such election to reflect the Transferred Amount. Gains,
losses, and other charges and credits accruing thereafter
shall be allocated among the separate account holding the
Transferred Amount and the balance of the Safra Employee's
Account Balance under the Plan on a pro rata basis. All
amounts held in the separate account shall be treated in
accordance with the rules relating to the Transferred Amount
under this Exhibit B.
<PAGE>
TABLE OF CONTENTS
Page
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . 2
1.1 "Account Balance" . . . . . . . . . . . . . . . . . 2
1.2 "Actual Contribution Percentage". . . . . . . . . . 2
1.3 "Actual Deferral Percentage". . . . . . . . . . . . 2
1.4 "After-Tax Employee Contributions". . . . . . . . . 2
1.5 "Annual Additions". . . . . . . . . . . . . . . . . 2
1.6 "Approved Absence". . . . . . . . . . . . . . . . . 2
1.7 "Beneficiary" . . . . . . . . . . . . . . . . . . . 2
1.8 "Board" . . . . . . . . . . . . . . . . . . . . . . 2
1.9 "Code". . . . . . . . . . . . . . . . . . . . . . . 2
1.10 "Committee" . . . . . . . . . . . . . . . . . . . . 3
1.11 "Company" . . . . . . . . . . . . . . . . . . . . . 3
1.12 "Compensation". . . . . . . . . . . . . . . . . . . 3
1.13 "Date of Hire". . . . . . . . . . . . . . . . . . . 4
1.14 "Defined Benefit Plan Fraction" . . . . . . . . . . 4
1.15 "Defined Contribution Plan Fraction". . . . . . . . 4
1.16 "Disability". . . . . . . . . . . . . . . . . . . . 4
1.17 "Earnings". . . . . . . . . . . . . . . . . . . . . 4
1.18 "Effective Date". . . . . . . . . . . . . . . . . . 4
1.19 "Employee". . . . . . . . . . . . . . . . . . . . . 4
1.20 "Employer". . . . . . . . . . . . . . . . . . . . . 4
1.21 "Employer Allocation" . . . . . . . . . . . . . . . 5
1.22 "ERISA" . . . . . . . . . . . . . . . . . . . . . . 5
1.23 "Family Member" . . . . . . . . . . . . . . . . . . 5
1.24 "Flex Fund" . . . . . . . . . . . . . . . . . . . . 5
1.25 "Flex Fund Elective Deferral" . . . . . . . . . . . 5
1.26 "Forfeitures" . . . . . . . . . . . . . . . . . . . 5
1.27 "Highly Compensated Employee" . . . . . . . . . . . 5
1.28 "Hour of Service" . . . . . . . . . . . . . . . . . 5
1.29 "Investment Option" . . . . . . . . . . . . . . . . 6
1.30 "Key Employee". . . . . . . . . . . . . . . . . . . 6
1.31 "Member". . . . . . . . . . . . . . . . . . . . . . 6
1.32 "Nonhighly Compensated Employee". . . . . . . . . . 6
1.33 "Normal Retirement Age" . . . . . . . . . . . . . . 6
1.34 "One Year Period of Severance". . . . . . . . . . . 6
1.35 "Period of Absence" . . . . . . . . . . . . . . . . 6
1.36 "Period of Service" . . . . . . . . . . . . . . . . 6
1.37 "Period of Severance" . . . . . . . . . . . . . . . 7
1.38 "Personal Contributions". . . . . . . . . . . . . . 7
1.39 "Plan". . . . . . . . . . . . . . . . . . . . . . . 7
1.40 "Plan Year" . . . . . . . . . . . . . . . . . . . . 7
1.41 "Projected Annual Benefit". . . . . . . . . . . . . 7
1.42 "Qualified Nonelective Contributions" . . . . . . . 8
1.43 "Restatement Date". . . . . . . . . . . . . . . . . 8
1.44 "Retirement". . . . . . . . . . . . . . . . . . . . 8
1.45 "Savings Plan Contributions". . . . . . . . . . . . 8
1.46 "Severance from Service Date" . . . . . . . . . . . 8
1.47 "Top Heavy" . . . . . . . . . . . . . . . . . . . . 8
1.48 "Trust or Trust Fund" . . . . . . . . . . . . . . . 8
1.49 "Trustee" . . . . . . . . . . . . . . . . . . . . . 8
1.50 "Valuation Date". . . . . . . . . . . . . . . . . . 8
ARTICLE II PARTICIPATION . . . . . . . . . . . . . . . . . 9
2.1 Eligibility for Participation . . . . . . . . . . . 9
2.2 Transferred Bankers Trust Employees . . . . . . . . 10
2.3 Williamsburgh Savings Bank Employees. . . . . . . . 11
2.4 Manhattan Savings Bank Employees. . . . . . . . . . 11
2.5 SafraBank Florida Employees . . . . . . . . . . . . 11
2.6 SafraBank California Employees. . . . . . . . . . . 11
ARTICLE III CONTRIBUTIONS . . . . . . . . . . . . . . . . . 12
3.1 Savings Plus Contributions. . . . . . . . . . . . . 12
3.2 Flex Fund Elective Deferral . . . . . . . . . . . . 13
3.3 Employer Allocations. . . . . . . . . . . . . . . . 14
3.4 After-Tax Employee Contributions. . . . . . . . . . 14
3.5 Personal Contributions. . . . . . . . . . . . . . . 15
3.6 Qualified Nonelective Contributions . . . . . . . . 15
3.7 Transferred Bankers Trust Employees . . . . . . . . 16
3.8 Williamsburgh Savings Bank Employees. . . . . . . . 16
3.9 Manhattan Savings Bank Employees. . . . . . . . . . 17
3.10 Payment of Contributions. . . . . . . . . . . . . . 17
3.11 Special Rule for Deferrals. . . . . . . . . . . . . 17
ARTICLE IV LIMITATIONS ON CONTRIBUTIONS. . . . . . . . . . 18
4.1 Maximum Dollar Amount of Savings Plus
Contributions and/or Flex Fund Elective
Deferrals . . . . . . . . . . . . . . . . . . . . . 18
4.2 Actual Deferral Percentage Test . . . . . . . . . . 19
4.3 Actual Contribution Percentage Test . . . . . . . . 25
4.4 Maximum Annual Additions. . . . . . . . . . . . . . 31
4.5 Definition of Highly Compensated Employee . . . . . 34
4.6 Effective Date. . . . . . . . . . . . . . . . . . . 36
ARTICLE V ACCOUNTS AND VESTING. . . . . . . . . . . . . . 37
5.1 Personal Contributions Account. . . . . . . . . . . 37
5.2 After-Tax Employee Contribution Account . . . . . . 37
5.3 Savings Plus Account. . . . . . . . . . . . . . . . 37
5.4 Flex Fund Elective Deferral Account . . . . . . . . 37
5.5 Qualified Nonelective Contribution Account. . . . . 37
5.6 Employer Allocation Account . . . . . . . . . . . . 37
5.7 Termination of Employment . . . . . . . . . . . . . 37
5.8 Forfeitures . . . . . . . . . . . . . . . . . . . . 37
5.9 Reemployment. . . . . . . . . . . . . . . . . . . . 38
5.10 Accounts. . . . . . . . . . . . . . . . . . . . . . 39
5.11 Statement of Accounts . . . . . . . . . . . . . . . 40
ARTICLE VI DISTRIBUTIONS . . . . . . . . . . . . . . . . . 41
6.1 In General. . . . . . . . . . . . . . . . . . . . . 41
6.2 Methods of Distribution . . . . . . . . . . . . . . 41
6.3 Hardship and Other In Service Distributions . . . . 46
6.4 Distribution Upon Plan Termination. . . . . . . . . 50
6.5 Withdrawal of Personal Contributions and After-
Tax Employee Contributions. . . . . . . . . . . . . 50
ARTICLE VII TOP-HEAVY PROVISIONS. . . . . . . . . . . . . . 52
7.1 Definition of Top-Heavy . . . . . . . . . . . . . . 52
7.2 Definition of Key Employee and Non-Key Employee . . 53
7.3 Reduced Limitation. . . . . . . . . . . . . . . . . 54
ARTICLE VIII INVESTMENTS . . . . . . . . . . . . . . . . . . 55
8.1 Investment Elections. . . . . . . . . . . . . . . . 55
8.2 Valuation of Investment Units . . . . . . . . . . . 57
8.3 Investment Option Transfers . . . . . . . . . . . . 58
8.4 Fractional Investment Units . . . . . . . . . . . . 58
8.5 Additional Dates for Investment Election. . . . . . 58
8.6 Special Investment Rules for the April 1, 1995
Calendar Quarter. . . . . . . . . . . . . . . . . . 58
8.7 Member-Directed Investments Under Section 404(c)
of ERISA. . . . . . . . . . . . . . . . . . . . . . 59
8.8 Miscellaneous Provisions Regarding Investment of
Assets. . . . . . . . . . . . . . . . . . . . . . . 60
8.9 Construction of this Article. . . . . . . . . . . . 60
ARTICLE IX MANDATORY DISTRIBUTIONS AND DISTRIBUTIONS
AFTER DEATH . . . . . . . . . . . . . . . . . . 61
9.1 Mandatory Distributions . . . . . . . . . . . . . . 61
9.2 Distributions After Death . . . . . . . . . . . . . 61
9.3 Life Expectancy . . . . . . . . . . . . . . . . . . 62
9.4 Prior Election. . . . . . . . . . . . . . . . . . . 62
9.5 Code Section 401(a)(9) Incorporated by Reference. . 62
9.6 Missing Members . . . . . . . . . . . . . . . . . . 62
9.7 Designation of Beneficiary. . . . . . . . . . . . . 63
9.8 Proof of Death and Beneficiary. . . . . . . . . . . 64
9.9 Commutation of Payments to Estate . . . . . . . . . 64
ARTICLE X THE TRUST FUND. . . . . . . . . . . . . . . . . 65
10.1 Trust . . . . . . . . . . . . . . . . . . . . . . . 65
10.2 Investment Manager. . . . . . . . . . . . . . . . . 65
ARTICLE XI ROLLOVERS AND TRANSFERS . . . . . . . . . . . . 66
11.1 Rollover Amounts. . . . . . . . . . . . . . . . . . 66
11.2 Trustee to Trustee Transfers. . . . . . . . . . . . 67
11.3 Limitation Regarding Transfers. . . . . . . . . . . 67
11.4 Direct Rollover Distribution to an Eligible
Retirement Plan . . . . . . . . . . . . . . . . . . 67
ARTICLE XII ADMINISTRATION. . . . . . . . . . . . . . . . . 69
12.1 Employee Benefits and Compensation Committee. . . . 69
12.2 Duties of the Committee . . . . . . . . . . . . . . 69
12.3 Powers of the Committee . . . . . . . . . . . . . . 69
ARTICLE XIII MORE THAN ONE EMPLOYER. . . . . . . . . . . . . 72
13.1 Merger of Plans . . . . . . . . . . . . . . . . . . 72
13.2 Inclusion of Employers and Cessation of Employer
Status. . . . . . . . . . . . . . . . . . . . . . . 72
13.3 Transfer of Employees Between Employers . . . . . . 72
13.4 Successor Employers . . . . . . . . . . . . . . . . 72
ARTICLE XIV AMENDMENT AND TERMINATION . . . . . . . . . . . 73
14.1 Amendment . . . . . . . . . . . . . . . . . . . . . 73
14.2 Termination . . . . . . . . . . . . . . . . . . . . 73
ARTICLE XV VOTING AND OTHER RIGHTS . . . . . . . . . . . . 74
15.1 Voting. . . . . . . . . . . . . . . . . . . . . . . 74
15.2 Tender or Exchange Offer. . . . . . . . . . . . . . 74
15.3 Member is Named Fiduciary . . . . . . . . . . . . . 75
15.4 Effective Date. . . . . . . . . . . . . . . . . . . 75
ARTICLE XVI MISCELLANEOUS . . . . . . . . . . . . . . . . . 76
16.1 Rights of Members . . . . . . . . . . . . . . . . . 76
16.2 Qualified Domestic Relations Order. . . . . . . . . 76
16.3 Return of Contributions . . . . . . . . . . . . . . 79
16.4 No Diversion. . . . . . . . . . . . . . . . . . . . 79
16.5 Commencement of Benefits. . . . . . . . . . . . . . 79
16.6 Benefits Paid Solely from Trust Fund. . . . . . . . 80
16.7 Gender. . . . . . . . . . . . . . . . . . . . . . . 80
16.8 Law Governing . . . . . . . . . . . . . . . . . . . 80
16.9 Illegal Provisions. . . . . . . . . . . . . . . . . 80
16.10 No Additional Rights Created. . . . . . . . . . . . 80
16.11 Construction. . . . . . . . . . . . . . . . . . . . 80
16.12 Incompetency. . . . . . . . . . . . . . . . . . . . 80
16.13 Payments to a Minor . . . . . . . . . . . . . . . . 81
16.14 Headings. . . . . . . . . . . . . . . . . . . . . . 81
EXHIBITS
A Calculation of a Member's Employer Allocation for a
Plan Year
B Special Provisions for Former SafraBank Florida and
SafraBank California Employees
EXHIBIT 23
CONSENT OF INDEPENDENT AUDITORS'
The Board of Directors of Republic New York Corporation:
We consent to the incorporation by reference in this
Registration Statement on Form S-8 of Republic New York Corporation
of our report dated January 18, 1994 relating to our audit of the
consolidated financial statements of Republic New York Corporation
and subsidiaries as of December 31, 1993 and 1992, and for each of
the years in the three-year period ended December 31, 1993, which
report appears on page 77 of the 1993 Annual Report on Form 10-K of
Republic New York Corporation. Our report refers to changes in
accounting relating to certain investments in debt and equity
securities and to changes in accounting for income taxes.
We also consent to the incorporation by reference in this Registration
Statement on Form S-8 of Republic New York Corporation of our report
dated June 13, 1994 relating to the financial statements of the Profit
Sharing and Savings Plan of Republic National Bank of New York as of
December 31, 1993 and 1992 for each of the years in the two-year period
ended December 31, 1993, which financial statements are included in the
December 31, 1993 annual report on Form 11-K of the Profit Sharing and
Savings Plan of Republic National Bank of New York.
KPMG PEAT MARWICK LLP
New York, New York
January 18, 1995
